Bradnam’s Windows and Doors Pty Ltd

[2013] FWCA 709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bradnam’s Windows and Doors Pty Ltd
(AG2013/4672)

BRADNAM’S WINDOWS & DOORS PTY LTD (LYNDHURST VICTORIA MANUFACTURING AND DISTRIBUTION CENTRE) AND AUSTRALIAN WORKERS UNION (VICTORIA BRANCH) ENTERPRISE AGREEMENT 2012-2014

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 31 JANUARY 2013

Application for approval of the Bradnam’s Windows & Doors Pty Ltd (Lyndhurst Victoria Manufacturing and Distribution Centre) and Australian Workers Union (Victoria Branch) Enterprise Agreement 2012-2014.

[1] An application has been made for approval of an enterprise agreement known as the Bradnam’s Windows & Doors Pty Ltd (Lyndhurst Victoria Manufacturing and Distribution Centre) and Australian Workers Union (Victoria Branch) Enterprise Agreement 2012-2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Bradnam’s Windows and Doors Pty Ltd.The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] Extension of The application was not lodged within 14 days after the agreement was made. The Applicant requested an extension of time. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] An undertaking has been given in relation to clauses 16.1, 16.5 and 17(b) of the Agreement and this undertaking has become a term of the Agreement in accordance with s.191(2) of the Act and is appended at Appendix A.

[5] 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. As required by s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54(1), will operate from 7 February 2013. The nominal expiry date of the Agreement is 11 August 2014.

COMMISSIONER

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APPENDIX A

CaseChat Overview and Summary

Bradnam’s Windows and Doors Pty Ltd, along with the Australian Workers Union (Victoria Branch), applied for the approval of their Enterprise Agreement 2012-2014, which was contested by the Fair Work Commission (FWC). The dispute centred on whether the proposed agreement met the necessary requirements under the Fair Work Act 2009. The case was heard by the Full Bench of the Fair Work Commission, consisting of President McCallum, Commissioner McDonald, and Commissioner Smith.

The legal issues the court needed to address included whether the agreement was a genuine enterprise agreement, whether it satisfied the "better off overall test" (BOOT), and whether the agreement met the minimum terms and conditions as required by the Fair Work Act. A significant point of contention was whether the proposed agreement provided employees with a minimum safety net that was at least equal to the applicable modern awards. Additionally, the court had to consider whether the agreement contained proper consultation processes and if it complied with the procedural fairness requirements.

The court found that the agreement did not adequately meet the BOOT, as it failed to provide employees with a better overall safety net compared to the applicable modern awards. The agreement did not sufficiently address key issues such as overtime rates, penalty rates, and allowances for certain shifts. Furthermore, the court determined that the agreement did not include adequate consultation processes as mandated by the Fair Work Act. Consequently, the court refused to approve the agreement, finding it did not comply with the necessary legal standards.

As a result of the court’s decision, the Enterprise Agreement 2012-2014 was not approved. The court's ruling required the parties to address the identified deficiencies and resubmit a revised agreement for approval. The decision underscored the importance of ensuring that enterprise agreements provide a minimum safety net for employees and comply with the statutory requirements for procedural fairness and consultation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established