Dowell Windows Pty Ltd

[2021] FWCA 6755

[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

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Annexure A