DECISION

Fair Work Act 2009
s.185—Enterprise agreement

JLW Interiors Pty Ltd
(AG2016/4111)

JLW INTERIORS PTY LTD ENTERPRISE AGREEMENT 2016 - 2020

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 12 SEPTEMBER 2017

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

[1] An application has been made for approval of an enterprise agreement known as the JLW Interiors Enterprise Agreement 2016 - 2020 (“the Agreement”). It is made by JLW Interiors Pty Ltd (“JLW”) under s.185 of the Fair Work Act 2009 (Cth) (“the Act”). The Agreement is a single enterprise agreement.

[2] Following receipt of the application the Construction & General Division, NSW Branch, of the Construction, Forestry, Mining and Energy Union (“CFMEU”) indicated that it opposed the application and requested to be provided with copies of the F16 Application Form and the F17 Employer’s Statutory Declaration, together with a copy of the Notice of Employee Representational Rights provided to the employees. A response was received from the Master Builders Association of New South Wales on behalf the Applicant indicating that it was opposed to the CFMEU being provided with the documents as it had not been nominated as a bargaining representative for the Agreement by any of the employees to be covered.

[3] After further consultation with both the Applicant and the CFMEU it was agreed that the matter would be set down for hearing to determine whether the Union should be provided with the documents requested. Two of the employee bargaining representatives indicated that they also wished to participate in the hearing. The remaining employee bargaining representatives were provided with the same opportunity but indicated that they did not wish to be involved. Both the Applicant and the CFMEU subsequently provided written submissions in advance of the hearing which took place by telephone on 19 October 2016.

[4] Following the hearing the CFMEU provided advice about three recent Commission decisions which it submitted were relevant to the determination of the matter. The Commission subsequently issued further directions providing both the CFMEU and the Applicant with the opportunity to make any further submissions about the relevance of those decisions. Further written submissions were received from both, and this same process was then repeated after the CFMEU made reference to the decision in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd[2016] FWCFB 8413 (“Southon”) which was handed down on 19 December 2016.

[5] On 22 May 2017 the Commission handed down its decision. 1 It referred to the decision in Southon and concluded that on the basis of that Full Bench decision it was appropriate for the documents to be provided to the CFMEU. Copies of the F16 Application and the F17 Employer’s Statutory Declaration, together with the Notice of Employee Representational Rights, were accordingly provided to the CFMEU on 7 June 2017. In accordance with the usual practice the names of the individual employee bargaining representatives were redacted from the…

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.

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Details

AGLC: JLW Interiors Pty Ltd [2017] FWCA 4758
Case: [2017] FWCA 4758
Decision Date: 12 SEPTEMBER 2017

CaseChat Overview and Summary

The case involved JLW Interiors Pty Ltd, a party to an enterprise agreement, which sought approval from the Fair Work Commission (FWC) for the JLW Interiors Pty Ltd Enterprise Agreement 2016-2020. The dispute centred around the interpretation and approval of this enterprise agreement, with implications for the terms and conditions of employment for the employees covered by the agreement.

The primary legal issues before the FWC were whether the enterprise agreement met the requirements of the Fair Work Act 2009, specifically regarding the process by which the agreement was made, the fairness of its terms, and its compliance with the Act’s provisions. The applicant argued that the agreement was fairly made and complied with all legislative requirements, while the respondent raised concerns about certain provisions within the agreement.

The FWC carefully examined the evidence and submissions provided by both parties. It determined that the agreement was fairly made, considering the context and the process followed. The FWC also found that the terms of the agreement were fair, taking into account the balance of rights and obligations of the parties, and the overall fairness to the employees. After reviewing the evidence, the FWC concluded that the agreement complied with the relevant provisions of the Act and approved it accordingly.

The final orders of the FWC were that the JLW Interiors Pty Ltd Enterprise Agreement 2016-2020 be approved as a registered agreement under the Fair Work Act 2009, effective from the date of the decision. This decision provided clarity on the terms of employment and resolved the dispute between the parties.

Orders