DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Panoramic Windows Pty Ltd T/A 360 Windows
(AG2016/5089)

PANORAMIC WINDOWS PTY LTD TRADING AS 360 WINDOWS ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 9 SEPTEMBER 2016

Application for approval of the Panoramic Windows Pty Ltd trading as 360 Windows Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Panoramic Windows Pty Ltd trading as 360 Windows Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Panoramic Windows Pty Ltd T/A 360 Windows. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Agreement was approved on 9 September 2016 and, in accordance with s.54, will operate from 16 September 2016. The nominal expiry date of the Agreement is 9 September 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicant, Panoramic Windows Pty Ltd trading as 360 Windows, applied to the Fair Work Commission for the approval of the Enterprise Agreement 2016. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which claimed that the agreement did not comply with certain provisions of the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The primary legal issues before the Commission were whether the Enterprise Agreement complied with section 235 of the Fair Work Act, which mandates that agreements be in writing and contain specific prescribed terms. The CFMEU argued that the agreement did not meet these requirements because it failed to include a provision for the variation of employees' conditions of employment. The applicant contended that the absence of such a clause did not render the agreement non-compliant, as it was not a prescribed term under the Act.

The Fair Work Commission determined that the absence of a clause allowing for the variation of employees' conditions of employment did not render the Enterprise Agreement non-compliant with section 235 of the Fair Work Act. The Commission held that the agreement did not need to include such a provision as it was not one of the prescribed terms listed in the Act. The Commission further found that the agreement contained all the necessary prescribed terms and was therefore in compliance with the Act. The application for approval was subsequently granted.

The Fair Work Commission approved the Enterprise Agreement 2016, finding that it was in compliance with the Fair Work Act and did not require the inclusion of a clause for the variation of employees' conditions of employment.

Panoramic Windows Pty Ltd T/A 360 Windows

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established