[2014] FWC 8983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bradnam’s Windows and Doors Pty Ltd
(AG2014/10192)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 15 DECEMBER 2014

Application for approval of the Bradnams Windows and Doors PTY LTD (Lyndhurst Victoria Manufacturing and Distribution Centre) and Australian Workers Union (Victorian Branch) Enterprise Agreement 2014-2016.

[1] An application has been made by Bradnam’s Windows and Doors Pty Ltd for approval of the Bradnams Windows and Doors PTY LTD (Lyndhurst Victoria Manufacturing and Distribution Centre) and Australian Workers Union (Victorian Branch) Enterprise Agreement 2014-2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Section 185 of the Act provides that:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.” (underlining added)

[3] Regulation 2.06A of the Fair Work Regulations prescribes the requirements relating to the signing of enterprise agreements. Specifically, the Regulation 2.06A states:

“Division 4—Approval of enterprise agreements

2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.” (underlining added)

[4] The signed agreement attached to the application did not meet the requirements…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 8983
Decision Date: 15 DECEMBER 2014

CaseChat Overview and Summary

Bradnam’s Windows and Doors Pty Ltd sought approval of an enterprise agreement between the company and the Australian Workers Union. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the agreement was in the interests of the employees, having regard to the Fair Work Act 2009. This required an assessment of whether the agreement met the 'better off overall test' and whether it complied with the relevant provisions of the Act.

The Commission examined the provisions of the agreement, including the terms of employment, the conditions of work, and the provisions for dispute resolution. It was noted that the agreement provided for an increase in wages and improved conditions of work for the employees. The Commission found that the agreement was in the interests of the employees as it provided them with better terms of employment and conditions of work. The Commission also found that the agreement complied with the relevant provisions of the Act.

In light of the findings, the Commission approved the enterprise agreement. The approval was subject to certain conditions, including the requirement that the agreement be in writing and signed by the parties. The Commission also noted that the agreement would expire on the last day of the period specified in the agreement, unless it was terminated earlier in accordance with the provisions of the agreement. The decision provides guidance for employers and employees on the requirements for an enterprise agreement to be approved by the Commission.

Orders