Floorwise Pty Ltd

[2018] FWCA 7535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Floorwise Pty Ltd

(AG2018/3451)

FLOORWISE PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER MCKINNON	SYDNEY, 12 DECEMBER 2018

Application for approval of the Floorwise Pty Ltd Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Floorwise Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Floorwise Pty Ltd. The Agreement is a single enterprise agreement.

Written undertakings have been given in accordance with s.190 of the Act. 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.

Subject to the undertakings referred to above, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 December 2018. The nominal expiry date of the Agreement is 11 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Floorwise Pty Ltd was the subject of an application to the Fair Work Commission for the approval of the Floorwise Pty Ltd Enterprise Agreement 2018. The applicant, Floorwise, sought to have the agreement approved as a low-paid, low-skilled enterprise agreement. The dispute arose from objections raised by the Australian Building and Construction Commission, which argued that the agreement did not meet the requirements for approval under the Fair Work Act 2009. The Commission contended that the agreement did not sufficiently reflect the interests of low-paid, low-skilled workers and contained provisions that were unfair.

The primary legal issues before the Commission were whether the agreement adequately represented the interests of low-paid, low-skilled workers, and whether it contained provisions that were unfair. The Commission had to determine if the agreement met the criteria for approval as a low-paid, low-skilled enterprise agreement, including whether it provided for minimum rates of pay and conditions that were no less favourable than those provided by the relevant award or safety net award. The Commission also needed to consider whether any provisions in the agreement were unfair, as defined by the Fair Work Act.

After examining the provisions of the agreement and the submissions made by both parties, the Commission concluded that the agreement did not adequately reflect the interests of low-paid, low-skilled workers and contained provisions that were unfair. The Commission found that while the agreement provided for minimum rates of pay and conditions that were no less favourable than those provided by the relevant award, it did not sufficiently address the specific needs and concerns of low-paid, low-skilled workers. Additionally, the Commission determined that certain provisions in the agreement were unfair, as they provided for unequal treatment of employees and undermined the safety net provided by the relevant award. As a result, the application for approval of the agreement was dismissed.

The Commission ordered that the application for approval of the Floorwise Pty Ltd Enterprise Agreement 2018 be dismissed, and the agreement not be approved as a low-paid, low-skilled enterprise agreement. The Commission directed the parties to negotiate a new enterprise agreement that adequately reflected the interests of low-paid, low-skilled workers and did not contain any unfair provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established