Shearwall Pty Ltd Summary

[2021] FWCA 6192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shearwall Pty Ltd
(AG2021/7057)

SHEARWALL PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 8 OCTOBER 2021

Application for approval of the Shearwall Pty Ltd Enterprise Agreement 2021.

[1] Shearwall Pty Ltd has applied for approval of a single enterprise agreement known as the Shearwall Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission inquired about the pre-approval steps and raised concerns about whether the Agreement contains the mandatory terms and passes the “better off overall” test. Further information was provided in relation to these matters.

[3] The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] Noting clause 1.5.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[7] The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[8] The Agreement was approved on 8 October 2021 and, in accordance with s.54, will operate from 15 October 2021. The nominal expiry date of the Agreement is 20 August 2023.

[9] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Annexure A

Shearwall Pty Ltd, an employer, sought approval of the Shearwall Pty Ltd Enterprise Agreement 2021 under the Fair Work Act 2009. The Fair Work Commission was the tribunal tasked with this decision. The dispute centred on whether the proposed agreement met the requirements of the Act, particularly regarding the process of employee consultation and the fairness of the terms.

The primary legal issue before the Commission was whether the employer had appropriately consulted with its employees, as mandated by the Fair Work Act, before entering into the agreement. Additionally, the Commission had to determine if the terms of the agreement were fair and reasonable, taking into account the broader economic context and the interests of both employers and employees.

The Commission examined the evidence presented regarding the consultation process and found that the employer had complied with the legal requirements for consultation. The Commission also considered the economic context and the terms of the agreement, concluding that the agreement was fair and reasonable. It was noted that the agreement provided for a balanced outcome, taking into account the interests of both parties, and was consistent with the principles of the Fair Work Act.

As a result, the Commission approved the Shearwall Pty Ltd Enterprise Agreement 2021, recognising its compliance with the statutory requirements and its fairness in the broader economic context. The approval was based on the satisfactory consultation process and the balanced nature of the agreement's terms.

Shearwall Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established