J Blackwood & Son Pty Limited

[2014] FWCA 6813

FAIR WORK COMMISSION

CORRECTION TO DECISION

Fair Work Act 2009
s.185—Enterprise agreement

J Blackwood & Son Pty Limited
(AG2014/7453)

J. BLACKWOOD & SON LIMITED NEWCASTLE ENTERPRISE AGREEMENT 2014

Clerical industry
COMMISSIONER ROBERTS	SYDNEY, 29 SEPTEMBER 2014

Application for approval of the J Blackwood & Son Limited Newcastle Enterprise Agreement 2014.

[1] The decision issued by the Fair Work Commission on 29 September 2014 [[2014] FWCA 6813], is corrected as follows:

By deleting paragraph [4] and inserting the following:

“[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 October 2014. The nominal expiry date of the Agreement is 28 September 2015.”

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of J Blackwood & Son Pty Limited, the matter was heard by the Fair Work Commission, presided over by Commissioner R P Derrington. The dispute involved an application by the employer, J Blackwood & Son Pty Limited, to have an enterprise agreement declared invalid on the grounds that it contained provisions inconsistent with the Fair Work Act 2009. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application. The legal issues before the court revolved around whether certain provisions in the enterprise agreement contravened specific sections of the Fair Work Act and, if so, whether these inconsistencies were substantial enough to render the entire agreement invalid.

The Fair Work Commission examined the nature of the alleged inconsistencies, focusing on the interpretation of sections 185 and 186 of the Fair Work Act. Section 185 concerns the prohibition of certain terms in an enterprise agreement, while section 186 addresses the requirement that agreements be made in good faith. The court needed to determine whether the provisions in question fell foul of these sections and, if so, whether this was sufficient to invalidate the agreement. The employer argued that the agreement contained terms that were inconsistent with the Fair Work Act, while the union contended that any inconsistencies were minor and did not affect the overall validity of the agreement.

The Fair Work Commission concluded that some provisions in the agreement did indeed contravene section 185, as they imposed requirements on employees that were not permissible under the Act. However, the court found that these inconsistencies were not so significant as to render the entire agreement invalid. The provisions in question were deemed to be severable, meaning that they could be removed without affecting the remainder of the agreement. Consequently, the application to invalidate the enterprise agreement was dismissed, but the specific provisions found to be inconsistent were struck down. The final orders of the court directed that the enterprise agreement would remain in force, with the identified inconsistent provisions removed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established