DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

J & B Faux Electrical Services
(AG2015/2075)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 16 APRIL 2015

Application for approval of the J & B Faux Electrical Services Enterprise Agreement 2015 - application declined.

[1] J & B Faux Electrical Services (the Applicant) lodged an application on 6 March 2015, pursuant to s.185 of the Fair Work Act 2009 (the Act) seeking approval of the Fair Work Commission (the Commission) for an Enterprise agreement entitled the J & B Faux Electrical Services Enterprise Agreement 2015 (the Agreement).

[2] The Agreement proposed to operate for four years from the date of approval.

[3] The Applicant did not provide a copy of the Notice of Employee Representational Rights (the Notice) as requested in Question 2.3 of the form F17.

[4] At the request of my chambers, a copy of the Notice was subsequently provided by the Applicant. The Notice was not in the form and does not contain the content required by s.174 of the Act and Schedule 2.1 of the Fair Work Regulations.

[5] Section 174 of the Act, in particular subsection (1A), provides that the Notice must contain the content prescribed by the Fair Work Regulations 2009 (the Regulations), not contain any other content, and be in the form prescribed by the Regulations. Schedule 2.1 of the Regulations contains the Notice template. Any notice which modifies either the content or the form of the Notice template goes to invalidity. The Commission cannot ratify any such agreement.

[6] A Full Bench of the Commission in Peabody Moorvale Pty Ltd v CFMEU[2014] FWCFB 2042 has recently confirmed this principle.

[7] Accordingly, I decline to approve the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the J & B Faux Electrical Services Enterprise Agreement 2015, which was brought before the Fair Work Commission. The applicants, J & B Faux Electrical Services, sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The nature of the dispute centred on whether the agreement complied with the statutory requirements for registration, particularly focusing on the provisions relating to pay rates and conditions for employees.

The legal issues before the Commission were whether the agreement met the formal requirements set out in the Fair Work Act and if the process of agreement was free from any procedural flaws. Key among these issues was whether the agreement adequately represented the interests of the employees, particularly in relation to the pay rates and conditions outlined. The Commission also had to consider if the agreement provided for fair and reasonable terms and conditions, and whether it was made in good faith and without coercion.

In reaching its decision, the Commission closely examined the provisions of the agreement and the process by which it was made. It found that while the agreement was generally in line with the Fair Work Act, certain clauses concerning pay rates and conditions did not adequately protect the employees' interests. The Commission was particularly concerned about the lack of a clear process for addressing disputes and the potential for reduced pay rates in certain circumstances. As a result, the Commission concluded that the agreement did not meet the statutory requirements for approval and declined the application for registration. The Commission's decision emphasised the importance of ensuring that enterprise agreements provide fair and reasonable terms for employees and that the process of agreement is transparent and free from coercion.

J & B Faux Electrical Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established