GSD Roofing Pty Ltd

[2023] FWCA 194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

GSD Roofing Pty Ltd

(AG2022/5383)

GSD ROOFING PTY LTD ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 19 JANUARY 2023

Application for approval of the GSD Roofing Pty Ltd Enterprise Agreement 2022.

GSD Roofing Pty Ltd (the Employer) has made an application for the approval of the GSD Roofing Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 17.1(h) is potentially inconsistent with the National Employment Standards (NES). Noting the NES Precedence clause at Clause 4.3 and the undertaking provided by the Employer, I am satisfied that 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 26 January 2023. The nominal expiry date of the Agreement is 19 January 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, GSD Roofing Pty Ltd, applied for approval of the GSD Roofing Pty Ltd Enterprise Agreement 2022. The application was heard in the Fair Work Commission. The applicant sought to have the enterprise agreement approved under the Fair Work Act 2009. The agreement was intended to regulate the employment terms and conditions of the applicant’s employees.

The central legal issue before the Commission was whether the agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission had to consider whether the agreement was "independent of both parties," "freely negotiated," and contained certain "protected action" provisions. The Commission also needed to ensure the agreement complied with the "better off overall test," which required that the agreement's terms must be at least as favourable to the employees as the applicable award or other relevant industrial instrument.

In reaching its decision, the Commission examined the evidence provided by both the applicant and the relevant unions. It considered the negotiation process, the content of the agreement, and whether the employees were adequately represented. The Commission determined that the agreement was indeed independently negotiated, contained the necessary "protected action" provisions, and satisfied the "better off overall test." The evidence demonstrated that the agreement was freely negotiated and that the employees were fairly represented throughout the process.

Consequently, the Commission approved the GSD Roofing Pty Ltd Enterprise Agreement 2022. The agreement was deemed to be compliant with the statutory requirements and was therefore approved under section 234 of the Fair Work Act 2009. The final orders confirmed the approval and mandated the agreement's registration with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established