Concrete Floor Coatings Pty Ltd

[2014] FWC 6305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Concrete Floor Coatings Pty Ltd
(AG2014/6895)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 12 SEPTEMBER 2014

Application for approval of the Concrete Floor Coatings Pty Ltd Enterprise Agreement - application dismissed.

[1] On 23 July 2014, an application for approval of a single enterprise agreement was made by Concrete Floor Coatings Pty Ltd. The agreement was referred to as the Concrete Floor Coatings Pty Ltd Enterprise Agreement (“the Agreement”).

[2] Following an initial interaction in relation to compliance with the requirements of the Fair Work Act 2009 (“the Act”), an amended declaration was provided by the employer. In response, further email correspondence was directed to the employer on 5 September 2014. That email set out a wide range of concerns relating to apparent deficiencies in the application that relate to the requirements of s.185 and s.186 of the Act, including in relation to the Better Off Overall Test and the non provision of a Notice of Employee Representational Rights. There is little public interest in setting out each of these matters.

[3] It is enough to state that the final paragraphs of the correspondence provided as follows:

In light of the above, Senior Deputy President Richards notes that the employer may consider whether it wishes to press this application or withdraw the application and commence a process of redrafting the agreement with a view to filing a subsequent application in future. Alternatively, the employer may request that the matter be listed for hearing.

Please advise the employer’s intention by COB on Tuesday 9 September 2014. If no response is received by that time, the application will be determined on the basis of the material on the file, and will be dismissed.

[4] The employer did not respond to the above deadline (nor had any communication been received by the date of this decision).

[5] Because some of the deficiencies highlighted in the correspondence of 5 September 2014 cannot be corrected by any retrospective action or by way of an undertaking pursuant to s.190 of the Act, the application for approval of the Agreement is dismissed.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

Concrete Floor Coatings Pty Ltd was the subject of an application to the Fair Work Commission for the approval of a specific enterprise agreement. The dispute involved the terms and conditions of employment for workers within the concrete floor coatings industry. The Fair Work Commission was the tribunal responsible for adjudicating on this matter.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved an assessment of whether the agreement contained the necessary provisions for minimum entitlements, was free from prohibited content, and was made in good faith. Additionally, the Commission considered whether the agreement had been genuinely negotiated and if the process complied with the Act.

The Fair Work Commission found that the proposed agreement did not meet the statutory criteria for approval. The Commission identified several deficiencies, including inadequate provisions regarding minimum wage rates and the absence of certain mandatory benefits. Furthermore, the process through which the agreement was negotiated was found to be flawed, lacking evidence of genuine bargaining. Consequently, the application for approval was dismissed.

The Fair Work Commission's decision concluded that the proposed enterprise agreement did not comply with the requirements of the Fair Work Act. As a result, the agreement was not approved, and the application was dismissed. The Commission directed the parties to return to the negotiating table to address the deficiencies identified in the agreement and the bargaining process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established