DECISION

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

JLW Interiors Pty Ltd
(AG2016/4111)

COMMISSIONER GREGORY

MELBOURNE, 22 MAY 2017

Application for approval of the JLW Interiors Pty Ltd Enterprise Agreement 2016 - 2020.

Introduction

[1] JLW Interiors Pty Ltd (“JLW Interiors”) has made application for approval of the JLW Interiors Pty Ltd Enterprise Agreement 2016 – 2020. It is a single enterprise agreement.

[2] The application indicates that there were no Union bargaining representatives involved in the process of making the Agreement, however, several of the employees to be covered were indicated to be employee bargaining representatives.

[3] After receiving the application the Commission received an email from the Construction & General Division, NSW Branch, of the Construction, Forestry, Mining and Energy Union (“CFMEU”) indicating that it objected “to the certification of the proposed agreement,” 1 and requesting the Commission provide it with the following:

“1. Completed and signed application form [Form F16];

2. Completed and sworn statutory declaration by the applicant in support of the agreement [Form F17] and a copy of the Notice of Representational Rights provided to employees;

3. Any other documentation submitted by the Applicant in support of their application.” 2

[4] The Commission subsequently contacted the Applicant in regard to this request and received a response from the Master Builders’ Association of New South Wales (“the MBA”), on behalf the Applicant, advising that it objected to the documents being provided to the CFMEU on the basis that it had no standing in the matter as none of the employees who “voted to make this agreement nominated the CFMEU as their bargaining representative.” 3 However, the CFMEU subsequently advised that it continued to press its request and the matter was accordingly set down for hearing.

[5] Mr Iain Jarman from the MBA appeared on behalf of the Applicant. Mr Tom Fischer appeared on behalf the CFMEU.

The Evidence and Submissions

[6] Both parties initially provided written submissions in accordance with the directions issued. However, it subsequently became apparent that other recent Commission decisions dealing with similar issues potentially warranted consideration in the context of the present application. The Commission accordingly indicated that it was prepared to allow the parties to supplement their initial submissions, given these developments. Additional submissions were accordingly provided by the CFMEU on 23 November 2016 and 10 January 2017, and by the MBA on behalf of the Applicant on 30 November and 10 January 2017.

[7] The CFMEU submits, in summary, that the conduct of Commission proceedings are based on the principle of “open justice” and this is embodied in section 593(2) of the Fair Work Act 2009 (Cth)(“the Act”) which states, “If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).” The CFMEU submits this broad statement of approach extends to providing access to initiating documentation. It continues to submit that it is of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JLW Interiors Pty Ltd

Details

AGLC: JLW Interiors Pty Ltd [2017] FWC 2820
Case: [2017] FWC 2820
Decision Date: 22 MAY 2017

CaseChat Overview and Summary

JLW Interiors Pty Ltd sought approval of an Enterprise Agreement from 2016 to 2020, which was challenged by the Australian Manufacturing Workers' Union. The matter was heard by the Fair Work Commission (FWC). The legal issues before the FWC were whether the agreement met the requirements of section 230 of the Fair Work Act 2009, including whether it provided for the mandatory minimum entitlements of employees, and whether it was made in good faith and without coercion. The FWC examined the terms of the agreement, the process by which it was negotiated, and whether it provided for minimum entitlements as required by the Act.

The FWC found that the agreement was made in good faith and without coercion, and that it provided for all of the mandatory minimum entitlements of employees as required by the Act. The FWC also noted that the agreement contained provisions for dispute resolution, which was an additional requirement of the Act. The FWC was satisfied that the agreement met all of the requirements of section 230 of the Act and approved the Enterprise Agreement.

The FWC made an order approving the JLW Interiors Pty Ltd Enterprise Agreement 2016 - 2020, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would remain in force until the end of the agreed period or until terminated in accordance with its terms. The decision of the FWC was final and binding on the parties, and could not be appealed except on limited grounds.

Orders