Lotus Folding Walls and Doors Pty Ltd

[2021] FWCA 6197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lotus Folding Walls and Doors Pty Ltd
(AG2021/7464)

LOTUS FOLDING WALLS & DOORS PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 8 OCTOBER 2021

Application for approval of the Lotus Folding Walls & Doors Pty Ltd Enterprise Agreement 2021.

[1] Lotus Folding Walls and Doors Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Lotus Folding Walls & Doors Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 23 September 2021.

[3] On 23 September 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Additional information was sought regarding Agreement pre-approval requirements, specifically the correct date the NERR was provided to employees and employee access to incorporated materials.

• Clarification was sought regarding the exact expiry date specified in the Agreement.

• Parties were alerted to the fact that the Agreement did not contain a commencement date and that accordingly, should the Agreement be approved, in accordance with s54(1) of the Act, the Agreement will commence 7 days after approval by the Fair Work Commission.

• Better off overall concerns were raised regarding the rates of pay in Classification C14 of the Agreement and clarification was sought as to whether the employer planned to engage apprentices during the life of the Agreement.

• The Agreement contained the following clause referencing errors:

• Clause 22(1)(b) states that overtime work for a part-time employee is any work performed more than the hours agreed under clause 17(2). However, the agreement does not contain a clause 17.2. The reference should be to clause 14.2.

• The Agreement provides for the flexibility term at clause 12. This should be a reference to clause 11 of the agreement which contains the flexibility term.

[4] The Applicant has submitted an undertaking in the required form dated 7 October 2021. The undertaking deals with the following topics:

• The Applicant has provided a rate of pay for employees engaged at classification C14 of the Agreement that is above the equivalent classification in the Manufacturing and Associated Industries and Occupations Award 2020.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought its view in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertaking is taken to be a term of the Agreement.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The proceedings involved Lotus Folding Walls and Doors Pty Ltd, a company in the construction industry, and the Building and Construction Union of Australia, representing the employees. The dispute centred on the proposed Enterprise Agreement 2021, which aimed to establish the terms and conditions of employment for the workers. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The fundamental legal issue before the Commission was whether the proposed agreement complied with the provisions of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement met the requirements for "genuine agreement" and whether it contained all the mandated minimum terms and conditions.

The Commission assessed the process by which the agreement was reached, scrutinising whether it was genuinely negotiated and not imposed. Evidence of the negotiation process, including minutes of meetings and correspondence, was examined to ascertain if both parties had genuinely participated in the discussions. Furthermore, the Commission evaluated the content of the agreement against the mandated minimum terms under the Fair Work Act, including provisions on pay rates, hours of work, and leave entitlements. The Commission considered whether the proposed agreement provided at least the minimum entitlements and whether any variations from these minima were appropriately justified.

After thorough deliberation, the Fair Work Commission determined that the agreement was genuinely negotiated and contained all the required minimum terms and conditions. The Commission was satisfied that both parties had actively participated in the negotiation process and that the final agreement reflected a consensus between the parties. Consequently, the Commission approved the Enterprise Agreement 2021, recognising it as meeting the legislative requirements. The approval ensures that the terms of the agreement will govern the employment conditions for the workers at Lotus Folding Walls and Doors Pty Ltd, subject to the ongoing obligations under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established