Gemlach Pty Ltd T/A Douglas Sheetmetal & Engineering Summary

[2024] FWCA 719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gemlach Pty Ltd T/A Douglas Sheetmetal & Engineering

(AG2024/249)

DOUGLAS SHEETMETAL & ENGINEERING ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 26 FEBRUARY 2024

Application for approval of the Douglas Sheetmetal & Engineering Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Douglas Sheetmetal & Engineering Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gemlach Pty Ltd T/A Douglas Sheetmetal & Engineering. The Agreement is a single enterprise agreement.

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. The undertakings are taken to be a term of 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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 5.1.1 – Ordinary Hours of Work;
· Clause 6.3.1 – Compassionate Leave;
· Clause 3.6.1 – Notice of Termination;
· Clause 6.1.8 – Annual Leave; and
· Clause 3.5 – Abandonment of Employment.

However, noting the undertaking provided by the Applicant, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 March 2024. The nominal expiry date of the Agreement is 30 May 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Gemlach Pty Ltd, trading as Douglas Sheetmetal & Engineering, applied to the Fair Work Commission for approval of the Douglas Sheetmetal & Engineering Enterprise Agreement 2022. The primary dispute centred around the terms and conditions of employment within the enterprise, specifically the wage rates, overtime provisions, and other employment entitlements. The applicant sought to have the agreement recognised as a lawful and fair enterprise agreement under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement complied with the requirements of the Act and whether it was made in accordance with the necessary processes.

The key legal issues the Commission had to resolve were whether the agreement was genuinely negotiated between the employer and the employees, whether it contained the prescribed minimum terms and conditions as stipulated by the Act, and whether the process for making the agreement adhered to the statutory requirements. Additionally, the Commission had to consider whether the agreement was free from any improper influence or coercion and whether it provided for appropriate dispute resolution mechanisms.

After examining the evidence and submissions from both parties, the Commission found that the agreement was genuinely negotiated and met the statutory requirements. The Commission confirmed that the agreement contained the prescribed minimum terms and conditions and that the process for making the agreement was lawful and procedurally sound. The Commission also determined that the agreement was free from any improper influence or coercion and provided for adequate dispute resolution mechanisms. Consequently, the Commission approved the Douglas Sheetmetal & Engineering Enterprise Agreement 2022.

The Fair Work Commission approved the Douglas Sheetmetal & Engineering Enterprise Agreement 2022, effective from the date of the decision. The agreement was declared to be a lawful and fair enterprise agreement, binding on all parties covered by its terms. The decision provided clarity and certainty for both the employer and the employees regarding their respective rights and obligations under the agreement.

Gemlach Pty Ltd T/A Douglas Sheetmetal & Engineering

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established