DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Caledonia WA Pty Ltd
(AG2019/1916)

CALEDONIA WA PTY LTD (INSULATION & CLADDING DIVISION) ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 16 JULY 2019

Application for approval of the Caledonia WA Pty Ltd (Insulation & Cladding Division) Enterprise Agreement 2019.

[1] On 5 June 2019 an application has been made for approval of an enterprise agreement known as the Caledonia WA Pty Ltd (Insulation & Cladding Division) Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Caledonia WA Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 28 June 2019.

[3] On 3 July 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 5 July 2019 The undertaking deals with the following topics:

• Clause 6.8.3 of the Agreement shall not operate so as to disentitle any employee for payment for public holidays under the National Employment Standards (NES).

• Casual employees are entitled to shift penalties and shift loading as detailed in the Agreement.

• Clause 5.1.3 of the Agreement shall be read as allowing agreement to be reached between the Applicant and its employees on alternative arrangements of the normal daily hours, provided that in any such arrangement ordinary hours will not exceed 10 per day, Monday to Friday, or 40 per week.

• Revised rates for Loaded Up Flat Rate Casual Employees have been inserted.

• A wage review process for Loaded Up Flat Rate Casuals who work more than three weeks of shift work in a four week period has been inserted.

[5] No bargaining representatives were appointed.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 4 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Caledonia WA Pty Ltd sought approval of the Caledonia WA Pty Ltd (Insulation & Cladding Division) Enterprise Agreement 2019. The Fair Work Commission was asked to decide whether the agreement met the requirements for registration under the Fair Work Act 2009. The dispute arose from the employer's application to have the agreement registered, which the union opposed on various grounds.

The primary legal issue before the Commission was whether the agreement met the necessary criteria for approval under the Fair Work Act, including whether it provided for the terms and conditions of employment of the employees covered by the agreement, was free from illegality, and was not contrary to public policy. The Commission also considered whether the agreement was genuinely negotiated and whether the bargaining process was free from coercion and undue influence.

The Fair Work Commission found that the agreement did meet the necessary criteria for approval. The Commission accepted that the agreement had been genuinely negotiated and that the bargaining process was free from coercion and undue influence. The Commission found that the agreement provided for the terms and conditions of employment of the employees covered by the agreement, was free from illegality, and was not contrary to public policy. The Commission noted that the agreement provided for a number of benefits for employees, including a wage increase, improved leave entitlements, and the introduction of a flexible work arrangements policy.

The Fair Work Commission approved the Caledonia WA Pty Ltd (Insulation & Cladding Division) Enterprise Agreement 2019, and it is now registered under the Fair Work Act. The employer and the union are bound by the terms of the agreement, and it will apply to the employees covered by the agreement.

Caledonia WA Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established