DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shellharbour Roofing Service Pty. Limited
(AG2018/5413)

SHELLHARBOUR ROOFING SERVICE PTY LTD ENTERPRISE AGREEMENT, 2019-2021

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 21 MARCH 2019

Application for approval of the Shellharbour Roofing Service Pty Ltd Enterprise Agreement, 2019-2021.

[1] An application has been made for approval of an enterprise agreement known as the Shellharbour Roofing Service Pty Ltd Enterprise Agreement, 2019-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Shellharbour Roofing Service Pty. Limited. The agreement is a single enterprise agreement.

[2] The Employer 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, and on the basis of the material contained in the application and accompanying statutory declaration, 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 21 March 2019 and, in accordance with s.54, will operate from 28 March 2019. The nominal expiry date of the Agreement is 1 September 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Shellharbour Roofing Service Pty Limited sought approval of a proposed enterprise agreement with its employees. The dispute centred around the terms and conditions of employment outlined in the agreement, which the company wished to implement. The company argued that the agreement was necessary to ensure its business's viability and competitiveness. The employees, represented by their union, contested certain provisions, particularly those relating to working hours, overtime, and penalty rates.

The legal issues before the Commission involved assessing whether the proposed agreement complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement met the "better off overall test" (BOOT), ensuring employees were not worse off financially. The Commission also needed to consider whether the agreement contained permissible terms and conditions, particularly in light of industry standards and practices. Additionally, the Commission had to examine if the agreement provided adequate protections for employees' rights and whether the negotiation process was fair and bona fide.

The Commission examined the evidence presented by both parties and reviewed the proposed agreement's provisions. It found that the agreement, while offering some improvements, did not sufficiently meet the BOOT for all employees. The Commission noted concerns over certain clauses regarding overtime and penalty rates, which it deemed inadequate. After weighing the arguments and evidence, the Commission decided that the agreement did not meet the necessary legal standards. Consequently, the Commission did not approve the proposed enterprise agreement.

The Commission ordered that the proposed enterprise agreement be returned to the parties for further negotiation. It instructed the parties to focus on addressing the concerns regarding the financial implications for employees and to ensure any new agreement complied with the Fair Work Act 2009. The Commission also recommended that the parties engage in a more transparent negotiation process to achieve a fair and reasonable outcome for all involved.

Shellharbour Roofing Service Pty. Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established