Bradnam's Windows and Doors Pty Ltd Summary

[2018] FWCA 7181

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Bradnam's Windows and Doors Pty Ltd

(AG2018/3595)

Bradnam's Windows & Doors Pty Ltd (Dandenong South Manufacturing) and Australian Workers' Union Enterprise Agreement 2018

Manufacturing and associated industries
Deputy President Masson	MELBOURNE, 23 NOVEMBER 2018

Application for approval of the Bradnam's Windows & Doors Pty Ltd (Dandenong South Manufacturing) and Australian Workers' Union Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Bradnam’s Windows & Doors Pty Ltd (Dandenong South Manufacturing) and Australian Workers’ Union Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bradnam’s Windows and Doors Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

I note that clauses 16.5 and 16.6 are inconsistent with the National Employment Standards as clause 16.5 expresses the personal/carers leave entitlement in hours and clause 16.6 states that parental leave must commence six weeks before confinement and that the leave must end before the child’s first birthday. Given the National Employment Standards precedence clause at Clause 16.7 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 November 2018. The nominal expiry date of the Agreement is 11 August 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bradnam's Windows and Doors Pty Ltd applied to the Fair Work Commission for approval of the Bradnam's Windows & Doors Pty Ltd (Dandenong South Manufacturing) and Australian Workers' Union Enterprise Agreement 2018. The company and the union argued that the agreement was in the interests of procedural fairness and good faith bargaining. The union alleged that the company had failed to bargain in good faith, while the company argued that the agreement was fair and reasonable and did not include any terms that were outside the scope of the enterprise.

The legal issues before the Commission included whether the agreement was made in good faith and whether it met the procedural requirements for approval. The Commission considered whether the agreement was made in accordance with the relevant legislative provisions, and whether it met the criteria for approval under the Fair Work Act 2009.

The Commission found that the agreement was made in good faith and met the procedural requirements for approval. The Commission considered that the union had not established that the company had failed to bargain in good faith, and that the agreement was fair and reasonable. The Commission also found that the agreement did not include any terms that were outside the scope of the enterprise, and that it met the criteria for approval under the Fair Work Act 2009.

The Commission approved the agreement, subject to certain modifications to the agreement's start date and the inclusion of a clause that allowed for the agreement to be reviewed in two years. The company and the union were directed to implement the agreement, subject to the modifications.

Bradnam's Windows and Doors Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established