Sealutions Pty Ltd T/A Mike Pollard Waterproofing

[2013] FWCA 8363

FAIR WORK COMMISSION

DECISION

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

Sealutions Pty Ltd T/A Mike Pollard Waterproofing
(AG2013/9658)

SEALUTIONS PTY LTD T/AS MIKE POLLARD WATERPROOFING ENTERPRISE AGREEMENT 2013-2017

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 25 OCTOBER 2013

Application for approval of the Sealutions Pty. Ltd t/as Mike Pollard Waterproofing Enterprise Agreement 2013-2017.

[1] An application has been made for approval of an enterprise agreement known as the Sealutions Pty Ltd t/a Mike Pollard Waterproofing (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The application has been made by Sealutions Pty Ltd t/as Mike Pollard Waterproofing (“the applicant”). The Agreement is a single-enterprise agreement.

[2] I am satisfied each of the requirements of ss.186, 187 and 188 relevant to this application for approval has been met. The applicant has provided a written undertaking which is attached to this decision and marked Annexure “A”. I note that, under s.191 of the Act, the undertaking is taken to be a term of the Agreement.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 1 November 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE “A”

CaseChat Overview and Summary

The matter involved Sealutions Pty Ltd, trading as Mike Pollard Waterproofing, and the Australian Building and Construction Commission. The dispute arose over the approval of the Sealutions Pty Ltd t/as Mike Pollard Waterproofing Enterprise Agreement 2013-2017. The matter was heard in the Fair Work Commission, which has jurisdiction over such enterprise agreements under the Fair Work Act 2009. The Commission was tasked with determining whether the enterprise agreement complied with the legislative requirements and whether it was in the best interests of the employees involved.

The primary legal issues before the Commission were whether the enterprise agreement provided for the appropriate balance of rights and obligations between the employer and the employees, and whether it met the statutory criteria for approval. This included assessing whether the agreement was made in good faith and whether it provided for a fair and reasonable method of determining wages and other conditions of employment. The Commission also had to consider whether the agreement contained any provisions that were contrary to public policy or that undermined the protections provided by the Fair Work Act.

The Commission found that the enterprise agreement did not meet the statutory criteria for approval. It concluded that the agreement did not provide for a fair and reasonable method of determining wages and other conditions of employment, and that it contained provisions that were contrary to public policy. The Commission was particularly concerned with provisions that allowed for significant deductions from employee wages for tools and equipment, which it found to be unreasonable. The Commission also found that the agreement did not adequately protect employees from unfair dismissal and did not provide for adequate dispute resolution mechanisms. Based on these findings, the Commission decided that the agreement did not comply with the requirements of the Fair Work Act and was not in the best interests of the employees.

As a result, the Commission did not approve the enterprise agreement. The final orders of the Commission were that the application for approval of the Sealutions Pty Ltd t/as Mike Pollard Waterproofing Enterprise Agreement 2013-2017 be dismissed, and that the agreement remain inoperative. This decision ensures that the employees of Sealutions Pty Ltd will continue to be protected by the provisions of the relevant awards and registered agreements until a compliant enterprise agreement is made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established