CWD Custom Windows Pty Ltd

[2020] FWCA 486

[2020] FWCA 486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CWD Custom Windows Pty Ltd
(AG2019/4967)

CWD CUSTOM WINDOWS COLLECTIVE AGREEMENT 2019 (TASMANIA)

Joinery and building trades
DEPUTY PRESIDENT COLMAN	MELBOURNE, 5 FEBRUARY 2020

Application for approval of the CWD Custom Windows Collective Agreement 2019

[1] CWD Custom Windows Pty Ltd (CWD) has made an application under s 185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the CWD Custom Windows Pty Ltd Collective Agreement 2019 (Tasmania) (the Agreement). The agreement is a single enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was a bargaining representative for the Agreement. The CFMMEU raised certain objections to the application, and I listed the matter for mention, however the union subsequently advised the Commission that it withdrew its objections and did not wish to be heard. I will however briefly address some of the concerns raised by the union, as well as matters raised by the Commission.

[3] First, the Notice of Employee Representational Rights (NERR) issued to employees by CWD appeared on company letterhead. It was suggested that the NERR might therefore be said to contain non-prescribed content, contrary to s 174(1A). As the Full Bench noted in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 the better view is that the mere presence of a company letterhead on a document containing a NERR does not invalidate the NERR, because it is a triviality with which s 174(1A) is not concerned. Nevertheless, like the Full Bench, and for the avoidance of doubt, I treat this as a ‘minor technical error’ for the purpose of s 188(2), as a result of which employees covered by the agreement are not likely to have been disadvantaged.

[4] Secondly, it appears from the employer’s statutory declaration that employees were not notified of the voting details by the start of the ‘access period’. The effect of ss 180(3) and (4) has been interpreted in Full Bench authority as requiring employees to be notified of the voting details seven clear days before the vote. In the present case, employees were provided with details of the vote on 10 December 2019, and the vote took place on 17 December 2019. However, I am satisfied that this too constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and that employees covered by the agreement are not likely to have been disadvantaged by the error.

[5] Thirdly, in relation to the broader question of whether the Agreement was genuinely agreed to by employees, I have considered all the circumstances put before the Commission concerning the negotiation of the Agreement and its approval by employees, and I am satisfied that there are no other reasonable grounds for believing that the agreement was not genuinely agreed to by employees, and that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[6] Fourthly, I have considered whether the relevant modern award for the purpose of the ‘better off overall test’ in s 193 is the Joinery and Building Trades Award 2010 (Joinery Award) or the Building and Construction General On-Site Award 2010. Based on the information that the company has provided to the Commission about the nature of its business and the work performed by the employees who will be covered by the Agreement, which I accept as accurate, I consider that the Joinery Award is the relevant award. The company manufactures windows at its own facility. It is an employer of employees in the ‘joinery and building trades industries and occupations’ (see clauses 4.1 and 4.8 of the Joinery Award). Specifically, relevant employees are engaged in ‘glass and glazing work’ (see clause 4.8(a)(vi)). This is defined in clause 3.1 of the Joinery Award as covering the working of all types of glass, as well as the fitting or fixing in position of glass. Employees covered by the Agreement are substantially engaged in such work and are covered by the classifications in Schedule B of the Joinery Award.

[7] The Commission has raised with CWD a number of matters concerning the question of whether the Agreement passes the better off overall test, measured against the Joinery Award. In response to the Commission’s outstanding concerns in this regard 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. The undertakings are taken to be a term of the agreement.

[8] Subject to the undertakings, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[9]The Agreement was approved on 5 February 2020 and, in accordance with s 54, will operate from 12 February 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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