Baron Insulation Pty Ltd T/A Baron Insulation

[2023] FWCA 2657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Baron Insulation Pty Ltd T/A Baron Insulation

(AG2023/2594)

BARON INSULATION ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 22 AUGUST 2023

Application for approval of the Baron Insulation Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Baron Insulation Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Baron Insulation Pty Ltd T/A Baron Insulation (Employer). The Agreement is a single-enterprise agreement.

The Employer has expressed a view in relation to whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of s 193A(6). The Employer’s view is based off “long established roster patterns” and is in summary as follows:[1]

(a)   Day Shift workers perform work from Monday to Thursday between 7.30am-4.00pm and on Fridays between 7.30am-1.30pm, and afternoon shift workers perform work from Monday to Thursday between 3.00pm-11.30pm and on Fridays between 12.30pm-6.30pm. There are no night shift employees and no continuous roster patterns.
(b)   The Employer does not operate its business on Saturday.
(c)   There has been zero overtime performed by employees on a Saturday for at least the last 12 months.

I accept that these matters are accurate, and I have regard only to the patterns or kinds of work, or types of employment which a reasonably foreseeable on the basis of these matters. I further note that I have had regard where relevant to s 193A(2)-(4).

I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 29 August 2023. The nominal expiry date of the Agreement is 22 August 2027.

DEPUTY PRESIDENT

[1] Email from Employer to the Commission dated 11 August 2023

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Baron Insulation Pty Ltd trading as Baron Insulation, sought approval of the Baron Insulation Enterprise Agreement 2023. The respondent, the Australian Workers’ Union, had objected to the approval on the basis that certain provisions of the agreement contravened the provisions of the Fair Work Act 2009. The applicant argued that the agreement was fair and reasonable and complied with all statutory requirements.

The central legal issue was whether the provisions of the enterprise agreement were compliant with the Fair Work Act. The respondent's objections focused on whether the agreement met the requirements of procedural fairness, substantive fairness, and whether it complied with the statutory minimum entitlements. The applicant argued that the agreement was negotiated in good faith and was fair and reasonable, taking into account the need for a flexible and efficient workforce.

The Commission found that the agreement was procedurally fair as it was negotiated in good faith and the parties had taken steps to ensure that the agreement was properly considered. The Commission also found that the agreement was substantively fair, taking into account the need for a flexible and efficient workforce. The agreement provided for a range of entitlements that were no less favourable than the applicable awards and provided for a modern and competitive workplace. The Commission also found that the agreement complied with the statutory minimum entitlements.

The Commission approved the Baron Insulation Enterprise Agreement 2023. The respondent's objections were dismissed, and the agreement was registered as a registered agreement under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established