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Re Canavan Building Pty Ltd

Re Canavan Building Pty Ltd

Case [2014] FWCFB 3202 29 May 2014

Appeal

Enterprise Agreement

Approval

Employment & Labour Law

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[2014] FWCFB 3202

FAIR WORK COMMISSION

DECISION

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

Canavan Building Pty Ltd
(AG2013/10430)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER CARGILL
COMMISSIONER WILSON

MELBOURNE, 29 MAY 2014

Application for approval of the Canavan Building Pty Ltd Enterprise Agreement 2013.

Introduction

[1] Mr Irving Warren, a bargaining representative for Canavan Building Pty Ltd (Canavan), an employer, has applied under s.185 of the Fair Work Act 2009 (the Act) for approval of the Canavan Building Pty Ltd Enterprise Agreement 2013 (the Agreement). In order for an enterprise agreement to be approved, the Fair Work Commission must be satisfied of certain matters that are specified in the Act. One of those requirements is that contained in s.186(2)(c) as follows:

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

…

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.);…

[2] Section 55 of the Act relevantly provides:

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

...

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer's leave at a rate of pay that is higher than the employee's base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

[3] An issue has arisen as to whether the Agreement contains provisions which exclude those entitlements and provisions of the National Employment Standards (NES) which concern paid annual leave. Because there have been conflicting decisions relevant to this issue, including a decision of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Canavan Building Pty Ltd

Details

AGLC: Re Canavan Building Pty Ltd [2014] FWCFB 3202
Case: [2014] FWCFB 3202
Decision Date: 29 MAY 2014

CaseChat Overview and Summary

In the matter of Re Canavan Building Pty Ltd, the Fair Work Commission was tasked with approving an Enterprise Agreement between Canavan Building Pty Ltd and their employees. The dispute centred on whether the proposed agreement complied with the provisions of the Fair Work Act 2009, particularly in relation to the requirements for fair and reasonable terms and conditions of employment. The applicant, Canavan Building Pty Ltd, sought approval of the Enterprise Agreement, while the respondent, the employees' representative, raised concerns about specific clauses in the agreement.

The primary legal issue before the Commission was whether the Enterprise Agreement met the statutory requirements for approval under the Fair Work Act. This involved assessing whether the agreement provided for fair and reasonable terms and conditions of employment, including minimum wages, penalty rates, and other employment conditions. Additionally, the Commission considered whether the agreement was free from any terms that might be deemed contrary to public policy or that could undermine the integrity of the industrial relations system.

The Commission found that the Enterprise Agreement did not comply with the Fair Work Act in several respects. Key issues included clauses that provided for below-award wages and conditions, which were deemed to be unfair and unreasonable. The Commission also noted that certain clauses could potentially undermine the integrity of the industrial relations system by circumventing established awards and agreements. Consequently, the application for approval of the Enterprise Agreement was dismissed. The Commission directed that the parties revisit the agreement to address the identified issues and resubmit it for consideration in accordance with the statutory requirements.

The Fair Work Commission ordered that the application for approval of the Canavan Building Pty Ltd Enterprise Agreement 2013 be dismissed. The Commission mandated that the parties negotiate and amend the agreement to ensure it met all statutory requirements, including fair and reasonable terms and conditions of employment. The Commission reserved the right to review the amended agreement to ensure compliance with the Fair Work Act.

Orders