Dowell Windows Pty Ltd T/A Dowell Windows

[2024] FWCA 3986

[2024] FWCA 3986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Dowell Windows Pty Ltd T/A Dowell Windows

(AG2024/4094)

DOWELL WINDOWS PTY LTD (EDINBURGH PARKS) AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 15 NOVEMBER 2024

Application for approval of the Dowell Windows Pty Ltd (Edinburgh Parks) Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Dowell Windows Pty Ltd (Edinburgh Parks) Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Dowell Windows Pty Ltd T/A Dowell Windows (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 6 November 2024.

1. On 7 November 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. In respect of the Notice of Employee Representational Rights (NERR) deficiency, it appears a pre-reform version of the NERR was provided to employees.  I am satisfied taking into consideration s.188(5) of the Act, that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly there has been a genuine agreement.

1. There is one National Employment Standard (NES) issue that require comment:

·  Clause 25.1 provides that by mutual agreement between the Applicant and employee, and/or section or sections, any other day may be substituted as a Public Holiday. This appears to be inconsistent with s.115(3) of the Act, as it is not clear if agreement must be between the company and individual employee or the section as a whole. Additionally, Clause 25 does not provide an entitlement to any other day or part-day declared or prescribed as required by s.115(b) of the Act.

1. Clause 5.5 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

2. The Applicant has submitted an undertaking in the required form dated 7 November 2024, a copy of which is attached to the Agreement. The undertaking provides for agreed part time hours and days of working including the start and finish times so as to determine when overtime is payable, consistent with the Manufacturing and Associated Industries and Occupations Award 2020.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The Construction, Forestry and Maritime Employees Union supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Construction, Forestry and Maritime Employees 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE526766  PR781277>