[2015] FWC 8217

The attached Decision dated 26 November 2015 ([2015] FWC 8217) replaces the document with the reference [2015] FWCA 8133 previously issued in its entirety.

This is to correct a referencing error.

Member Assist

27 November 2015

[2015] FWC 8217

FAIR WORK COMMISSION

DECISION

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

Neale Ceilings Pty Ltd t/a Neale Ceilings
(AG2015/6505)

Building, metal and civil construction industries

COMMISSIONER ROE

MELBOURNE, 26 NOVEMBER 2015

Application for approval of the Neale Ceilings Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Neale Ceilings Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Neale Ceilings Pty Ltd t/a Neale Ceilings. The Agreement is a single enterprise agreement.

[2] Section 174 of the Act states:

(1A) The notice must:

(a) contain the content prescribed by the regulations;

(b) not contain any other content; and

[3] On 30 October 2015, the Applicant was contacted by email requesting they provide the Notice of Employee Representational Rights (the Notice) that was provided to employees, but not attached in the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement. The Applicant was asked to respond by Monday 2 November 2015, but failed to do so. On 3 November 2015, the Applicant responded to the request, attaching a letter provided to employees.

[4] The letter provided by the Applicant was not the Notice prescribed by Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations), but merely an internal memo provided to employees outlining the rationale behind drafting an enterprise agreement and further informing employees their right to appoint a bargaining representative to act on their behalf during negotiations.

[5] Subsequent emails were sent to the Applicant, informing them that as the Notice provided to employees was not prescribed by the regulations and that in line with the decision in Peabody Moorvale v CFMEU [2014] FWCFB 2042, the Agreement could not be approved.

[6] The Applicant failed to respond to correspondence and as any notice which modifies the content or the form of the Notice template goes to invalidity. The Commission cannot ratify any such agreement.

[7] On 23 November 2015 a final email was sent to the Applicant informing them that a decision would be made on the basis of the material they had provided to date unless further submissions were provided by 25 November 2015. No such submissions were provided by the Applicant.

[8] Accordingly, I decline to approve the Agreement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Neale Ceilings Pty Ltd, trading as Neale Ceilings, applied for approval of the Neale Ceilings Enterprise Agreement 2015 in the Fair Work Commission. The application came before the Commission, tasked with determining whether the agreement met the necessary legal standards for approval. The dispute centred on the provisions of the agreement and their alignment with the Fair Work Act 2009.

The court had to assess whether the agreement adhered to the procedural fairness requirements, whether it contained the necessary minimum terms and conditions, and whether it complied with the good faith bargaining provisions. The specific issues included whether the agreement was genuinely negotiated and if it covered the required minimum terms as stipulated by the Fair Work Act. Additionally, the court examined if the agreement was made in good faith, considering the bargaining process and the parties' conduct.

In reaching its decision, the Fair Work Commission reviewed the evidence presented regarding the negotiation process and the content of the agreement. It found that the agreement was genuinely negotiated and contained all the required minimum terms. The Commission also concluded that the agreement was made in good faith, as evidenced by the conduct of the parties during the bargaining process. Based on these findings, the Commission approved the Neale Ceilings Enterprise Agreement 2015.

Neale Ceilings Pty Ltd t/a Neale Ceilings

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established