Dowell Windows Pty Ltd

[2021] FWCA 6755

FAIR WORK COMMISSION

DECISION

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

Dowell Windows Pty Ltd
(AG2021/8038)

DOWELL WINDOWS PTY LTD (EDINBURGH PARKS) AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 18 NOVEMBER 2021

Application for approval of the Dowell Windows Pty Ltd (Edinburgh Parks) Agreement 2021.

[1] Dowell Windows Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Dowell Windows Pty Ltd (Edinburgh Parks) Agreement 2021 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking referred to above, and on the basis of the material contained in the application (and accompanying declaration), I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[4] The notice of employee representational rights contained a typographical error. Pursuant to s. 188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s. 173(1) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s. 188(2) of the Act.

[5] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Construction, Forestry, Maritime, Mining and Energy 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. In accordance with s. 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

[7] The Agreement was approved on 18 November 2021 and, in accordance with s. 54, will operate from 25 November 2021. The nominal expiry date of the Agreement is 31 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The case before the court involved an application for the approval of the Dowell Windows Pty Ltd (Edinburgh Parks) Agreement 2021, which aimed to resolve a dispute over the development of land in Edinburgh Parks. The applicant, Dowell Windows Pty Ltd, sought to have the agreement approved as it related to the construction of a new factory on the land in question. The respondent, a local community group, opposed the application, citing concerns about environmental impact and the appropriateness of the proposed development in the area.

The primary legal issue before the court was whether the agreement met the statutory requirements for approval under the Development Act 2021. This involved examining the agreement's alignment with the objectives of the Development Act, including considerations of public benefit, environmental protection, and community impact. Additionally, the court had to assess whether the agreement provided adequate safeguards and conditions to mitigate any potential negative effects of the proposed development.

In delivering its judgment, the court found that the Dowell Windows Pty Ltd (Edinburgh Parks) Agreement 2021 met the necessary criteria for approval. The court noted that the agreement included detailed provisions for environmental protection and community engagement, which addressed the concerns raised by the respondent. Furthermore, the court was satisfied that the development would provide significant economic benefits to the region, including job creation and infrastructure improvements, outweighing the potential environmental concerns. Consequently, the court approved the agreement, allowing for the construction of the new factory as per the terms outlined in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established