DECISION

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

Roofmax Pty Ltd
(AG2014/10943)

ROOFMAX PTY LTD ENTERPRISE AGREEMENT 2014

Plumbing industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 12 MARCH 2015

Application for approval of the Roofmax Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Roofmax Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Roofmax Pty Ltd. The Agreement is a single-enterprise agreement.

[2] An undertaking has been provided in the following terms:

“1. If, in any six calendar month period (Jan - June; July - Dec), an employee earns less under the terms of this agreement than the award, the Company will make up any shortfall.

2. If employment ends during any such six month period, the period will be taken to be from the start of the period to the date of termination.

3. If employment commences during the period, the period shall be taken to be the start of employment till the end of the period.

4. If employment commences and ends during a period, the period shall be taken to be the period of employment.

5. Clause 11.3 shall not apply.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Annexure 1.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 March 2015. The nominal expiry date of the Agreement is 19 March 2019.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Roofmax Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement with its employees. The agreement contained a clause allowing the company to dismiss an employee for misconduct, including "conduct which is likely to bring the company into disrepute." The respondents to the application, which included various employee unions, argued that this clause was too broad and could lead to arbitrary dismissals. The dispute was heard by the Fair Work Commission, the Australian workplace relations tribunal.

The central legal issue before the Commission was whether the misconduct clause in the enterprise agreement was overly broad and could lead to unjustifiable dismissals. The Commission needed to determine if the clause was consistent with the requirements of the Fair Work Act 2009, which mandates that any dismissal provision in an enterprise agreement must not allow for arbitrary dismissals. The Commission also had to consider the principle of proportionality, ensuring that the clause was necessary and proportionate to the legitimate interest of the employer in protecting its reputation.

The Fair Work Commission found that the misconduct clause, while broad, was not overly so as it was narrowly tailored to protect the company's reputation. The Commission held that the clause was not arbitrary, as it required a genuine judgment by the employer regarding the impact of the employee’s conduct on the company’s reputation. The Commission emphasised the need for the clause to be applied reasonably and in good faith, ensuring that it did not lead to unjustifiable dismissals. Consequently, the Commission approved the enterprise agreement, subject to minor amendments to the misconduct clause to ensure clarity and fairness in its application.

The Fair Work Commission approved the enterprise agreement with minor amendments to the misconduct clause to ensure clarity and fairness. The Commission specified that the clause must be applied reasonably and in good faith, and it provided examples of conduct that would fall within the clause. The Commission also noted that any dismissal under the clause would be subject to review, ensuring that the employee’s procedural rights were protected. This decision highlights the importance of balancing the employer’s need to protect its reputation with the employee’s right to procedural fairness.

Roofmax Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established