DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Southern Star Windows Pty Ltd T/A Southern Star Windows
(AG2018/7061)

SOUTHERN STAR WINDOWS ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 29 APRIL 2019

Application for approval of the Southern Star Windows Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Southern Star Windows Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Southern Star Windows Pty Ltd T/A Southern Star Windows. 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, 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] The Employer did not notify each affected employee of their representational rights in accordance with s.173(3) of the Act. Pursuant to s.188(2) of the Act, I am satisfied that the agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirements set out in s.173 of the Act after having read and considered the Applicant’s submission dated 15 April 2019. 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.

[5] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 May 2019. The nominal expiry date of the Agreement is 30 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Southern Star Windows Pty Ltd, trading as Southern Star Windows, applied to the Fair Work Commission for the approval of the Southern Star Windows Enterprise Agreement 2017. The application arose amidst a dispute over the fairness and effectiveness of the proposed agreement in relation to the employees of the company. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement had been made in accordance with the procedural fairness requirements, and whether it contained the mandatory terms prescribed by the Act. Specifically, the Commission needed to consider whether the agreement provided for adequate consultation and the opportunity for employees to be represented. Additionally, the court examined whether the terms of the agreement complied with the safety net provided by the National Employment Standards and whether they were consistent with the principles of the modern awards applicable to the employees.

The Fair Work Commission found that the agreement had been made in a manner that complied with the procedural fairness requirements. The evidence demonstrated that there had been adequate consultation with the employees and that the opportunity for representation was appropriately facilitated. The Commission also determined that the agreement contained all the mandatory terms required by the Act, including those relating to the National Employment Standards. As a result, the application for approval of the Southern Star Windows Enterprise Agreement 2017 was successful.

The Fair Work Commission approved the Southern Star Windows Enterprise Agreement 2017, effective from the date of the decision. This approval signifies that the agreement is deemed to meet the necessary statutory requirements and can be implemented as the basis for employment conditions between Southern Star Windows and its employees.

Southern Star Windows Pty Ltd T/A Southern Star Windows

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established