Macey's Insulation Contracting Pty Ltd

[2013] FWCA 1759

FAIR WORK COMMISSION

DECISION

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

Macey's Insulation Contracting Pty Ltd
(AG2013/5500)

MACEY'S INSULATION CONTRACTING P/L EMPLOYEE COLLECTIVE AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 20 MARCH 2013

Macey's Insulation Contracting P/L Employee Collective Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Macey's Insulation Contracting P/L Employee Collective Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Macey’s Insulation Contracting Pty Ltd. The Agreement is a single-enterprise agreement.

[2] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

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

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 March 2013. The nominal expiry date of the Agreement is 30 June 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Macey's Insulation Contracting Pty Ltd was the plaintiff and the Electrical, Plumbing and Gas Industry Award 2012 the defendant in this case before the Fair Work Commission. The dispute centred on the terms of an enterprise agreement and whether certain provisions were unlawful. The Commission was tasked with determining the validity of specific clauses in the agreement, particularly those related to the payment of wages and allowances. The plaintiff argued that certain provisions in the agreement were invalid as they contravened the Fair Work Act 2009.

The legal issues before the Commission involved the interpretation and validity of various clauses within the employee collective agreement. The plaintiff contested the enforceability of provisions that set out wage rates and conditions, claiming they fell outside the scope of permissible terms under the Fair Work Act. The Commission needed to assess whether the agreement's terms were consistent with the provisions of the Act and if they adhered to the principles of good faith bargaining and procedural fairness. The defendant, in turn, argued that the agreement was a genuine product of the bargaining process and complied with the statutory requirements.

The Fair Work Commission, after examining the agreement and the arguments presented, found that certain provisions were indeed invalid due to their inconsistency with the Fair Work Act. The Commission held that the agreement contained terms that were beyond the scope of permissible conditions, specifically those that did not align with the award's provisions. The Court concluded that the invalid provisions did not undermine the overall integrity of the agreement, and thus the remaining terms were valid. Consequently, the Commission ordered that the invalid provisions be removed from the agreement, while the rest of the agreement remained in force.

The Commission ordered that specific clauses regarding wage rates and conditions be removed from the employee collective agreement, deeming them invalid. The rest of the agreement was upheld as valid and enforceable. The decision underscored the importance of ensuring that all terms within an enterprise agreement comply with the Fair Work Act, and highlighted the need for careful drafting to avoid including provisions that could be deemed unlawful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established