H & B Fencing & Gates Pty Ltd

[2013] FWCA 5140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

H & B Fencing & Gates Pty Ltd
(AG2013/1929)

H & B FENCING AND GATES PTY LTD ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 29 JULY 2013

Application for approval of the H & B Fencing and Gates Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the
H & B Fencing and Gates Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by H & B Fencing & Gates Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] An undertaking has been given in relation to clause 24 of the Agreement and this undertaking has become a term of the Agreement in accordance with s.191(2) of the Act and is appended at Appendix A.

[4] The Agreement is approved and, in accordance with s.54(1), will operate from 5 August 2013. The nominal expiry date of the Agreement is 4 August 2017.

COMMISSIONER

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APPENDIX A

The case involved an application for the approval of the H & B Fencing and Gates Pty Ltd Enterprise Agreement 2013 by the applicant, who sought to have the agreement certified by the Fair Work Commission. The applicant, a fencing and gates contractor, had entered into an enterprise agreement with its employees, who were represented by a union. The respondents, who included the union and several employees, objected to the agreement on various grounds. The dispute was heard by the Fair Work Commission, which was required to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement was genuinely a bargain between the parties, whether it contained the required minimum terms and conditions, and whether it was in the best interests of the employees. The Commission had to consider whether the agreement complied with the statutory requirements and whether it was a fair and reasonable agreement that provided for the efficient operation of the business. The Commission also had to assess whether the agreement provided for adequate protection of employees' rights and interests.

After considering the evidence and arguments presented by both parties, the Fair Work Commission found that the agreement was genuinely a bargain between the parties and contained the required minimum terms and conditions. The Commission also found that the agreement was in the best interests of the employees and provided for adequate protection of their rights and interests. The Commission approved the agreement, subject to certain modifications to ensure compliance with the statutory requirements. The modifications included changes to the provisions relating to overtime and penalty rates, as well as the inclusion of a dispute resolution clause.

The final orders of the Fair Work Commission were that the H & B Fencing and Gates Pty Ltd Enterprise Agreement 2013 be approved, subject to the modifications outlined in the decision. The agreement was to be registered with the Fair Work Ombudsman and would come into effect on the date of registration. The Commission also ordered that the applicant pay the costs of the application, which were to be shared equally between the parties. The decision provides guidance on the requirements for approving enterprise agreements and the factors that the Commission will consider in making its determination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established