Bradnam's Windows and Doors Pty Ltd

[2024] FWCA 3495

[2024] FWCA 3495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Bradnam’s Windows and Doors Pty Ltd

(AG2024/3282)

BRADNAM’S WINDOWS & DOORS PTY LTD (CARRUM DOWNS MANUFACTURING) AND AUSTRALIAN WORKERS’ UNION ENTERPRISE AGREEMENT (2024-2027)

Manufacturing and associated industries
COMMISSIONER PERICA	MELBOURNE, 3 OCTOBER 2024

Bradnam’s Windows & Doors Pty Ltd (Carrum Downs Manufacturing) and Australian Workers’ Union Enterprise Agreement (2024-2027)

1. An application has been made for approval of an enterprise agreement known as the Bradnam’s Windows & Doors Pty Ltd (Carrum Downs Manufacturing) and Australian Workers’ Union Enterprise Agreement (2024-2027) (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement does not contain a workplace delegates’ rights term as required by s 205A(1) of the Act. Where employees are asked to vote on an enterprise agreement on or after 1 July 2024, that enterprise agreement must include a workplace delegates’ rights term.

1. Section 205A(2) has the effect that if an Agreement contains a delegates’ rights term that is inferior to the delegates’ rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is “taken to be a term of the Agreement” under s 205A(2)(b). The inferior delegates’ rights term in the Agreement is rendered a nullity and of “no effect” under s 205A(2)(a).

1. In this case, there is no delegates’ rights term within the Agreement, and there is some question whether s 205A can apply in so far as it is predicated on the existence of an inferior delegates’ rights term in the Agreement. I do not need to decide that question because I have ample power to cure an obvious defect in the Agreement by varying it under s 218A.

1. Section 218A(1) allows the Commission to “vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I am satisfied I have power under s 218A to amend the Agreement by inserting the most favourable delegates’ rights term of the relevant Awards.

1. There are two underpinning awards, the Manufacturing and Associated Industries and Occupations Award 2020 and the Road Transport and Distribution Award 2020. The delegates’ rights terms are at clauses 40A and 29A respectively. There is no material difference between those two clauses. In those circumstances, one is not more favourable than the other and I have chosen to insert clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020.

1. The variation pursuant to s 218A will operate from 10 October 2024.

1. The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

1. Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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

1. The Agreement is approved today 3 October 2024. It will operate from 10 October 2024 as required by section 54 of the Act. The nominal expiry date is 11 August 2027.

COMMISSIONER

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Annexure A