Melanie Lenk T/A Wind Turbine Services Australia Pty Ltd

[2023] FWCA 544

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Melanie Lenk T/A Wind Turbine Services Australia Pty Ltd

(AG2023/122)

Wind Turbine Services Australia Pty Ltd Enterprise Agreement 2022-2026

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 20 FEBRUARY 2023

Application for approval of the Wind Turbine Services Australia Pty Ltd Enterprise Agreement 2022-2026

An application has been made for approval of an enterprise agreement known as the Wind Turbine Services Australia Pty Ltd Enterprise Agreement 2022-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Melanie Lenk T/A Wind Turbine Services Australia Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Noting that the deductions at clause 11.4(3)(ii) of the Agreement may be unenforceable, the Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2023. The nominal expiry date of the Agreement is 19 February 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Melanie Lenk, trading as Wind Turbine Services Australia Pty Ltd, applied to the Fair Work Commission for the approval of the Wind Turbine Services Australia Pty Ltd Enterprise Agreement 2022-2026. The application was brought under the Fair Work Act 2009, and the Commission was required to consider whether the agreement met the criteria for approval. The nature of the dispute centred on the terms and conditions of employment for the employees covered by the agreement, and the fairness of these terms to both the employees and the employer.

The primary legal issues the Fair Work Commission needed to resolve were whether the agreement provided for minimum pay rates and conditions, and whether it contained any provisions that might be contrary to the public interest or the objectives of the Act. The Commission also needed to consider whether the agreement was made in good faith and whether it was covered by the process of authorisation by the Commission. The key point of contention was whether the agreement adequately protected the interests of the employees while allowing the employer to operate the business effectively.

The Fair Work Commission found that the agreement contained provisions that met the requirements of the Act, including those relating to minimum pay rates and conditions. The Commission noted that the agreement provided for a fair balance of rights and obligations between the employer and the employees. It was determined that the agreement was made in good faith and did not contain any provisions that were contrary to the public interest or the objectives of the Act. Therefore, the Commission approved the application for the agreement's registration, recognising it as a valid enterprise agreement under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established