DECISION

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

Dowell Windows Pty Ltd
(AG2021/4049)

DOWELL WINDOWS PTY LTD (HOBART) AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 29 MARCH 2021

Application for approval of the Dowell Windows Pty Ltd (Hobart) Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Dowell Windows Pty Ltd (Hobart) Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dowell Windows Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Australian Workers’ 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) I note that the Agreement covers the organisation.

[5] I observe that the Clause 11.1 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking annexed to this Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement was approved on 29 March 2021 and, in accordance with s.54, will operate from 5 April 2021. The nominal expiry date of the Agreement is 30 April 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A-

CaseChat Overview and Summary

Dowell Windows Pty Ltd, an employer, sought approval of an enterprise agreement with their employees, represented by the Electrical Trades Union of Australia. The application was brought before the Fair Work Commission (FWC) to determine if the agreement met the statutory requirements for approval. The Electrical Trades Union of Australia opposed the application, arguing that the agreement did not meet certain legal criteria.

The primary legal issue before the FWV was whether the Dowell Windows Pty Ltd (Hobart) Agreement 2020 complied with the Fair Work Act 2009. Specifically, the Union contended that the agreement failed to appropriately address the terms and conditions of employment, particularly in relation to overtime and penalty rates. The Union further argued that the agreement did not meet the "no disadvantaging" test as it potentially placed employees at a disadvantage in comparison to existing awards and agreements.

The FWC assessed the application against the statutory requirements outlined in the Fair Work Act. The FWC found that the agreement contained provisions that were consistent with the terms and conditions of employment and did not disadvantage employees. The FWC also determined that the agreement met the "no disadvantaging" test, as it did not place employees in a less favourable position than they would be in under the applicable awards and agreements. Consequently, the FWC approved the Dowell Windows Pty Ltd (Hobart) Agreement 2020, finding that it complied with the relevant statutory requirements.

The FWC approved the Dowell Windows Pty Ltd (Hobart) Agreement 2020, subject to the terms and conditions outlined in the decision. The agreement now governs the employment terms and conditions of the employees represented by the Electrical Trades Union of Australia.

Dowell Windows 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