Tiling Waterproofing Services Pty Ltd

[2024] FWCA 419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tiling Waterproofing Services Pty Ltd

(AG2023/5527)

TILING WATERPROOFING SERVICES ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 31 JANUARY 2024

Application for approval of the Tiling Waterproofing Services Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Tiling Waterproofing Services Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tiling Waterproofing Services Pty Ltd. The Agreement is a single enterprise agreement.

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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. The title of the Agreement in NERR was listed as ‘Tiling Waterproofing Services Pty Ltd Collective Agreement 2023’ in contrast to the name of the Agreement in the Form F17 and the Agreement itself, which is ‘Tiling Waterproofing Services Enterprise Agreement 2023’. However, I am satisfied that this is a minor technical error and that pursuant to s.188(5) it may be disregarded.

The Agreement is approved and in accordance with s.54, will operate from 7 February 2024. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Tiling Waterproofing Services Pty Ltd, an employer, applied to the Fair Work Commission for the approval of the Tiling Waterproofing Services Enterprise Agreement 2023. The agreement was submitted for approval under section 232 of the Fair Work Act 2009. The applicants sought to have the agreement approved as a simple, low-paid, certified agreement, with the application being made by an authorised officer of the Fair Work Commission.

The primary issue for the Commission was whether the agreement met the criteria for approval under section 232 of the Fair Work Act. The Commission examined the agreement to determine if it was a "simple, low-paid, certified agreement" and whether it complied with the requirements of the Act, including provisions related to unfair dismissal and redundancy. The Commission also considered the process by which the agreement was made, the extent of employee and employer consultation, and the fairness of the terms and conditions outlined in the agreement.

The Fair Work Commission found that the agreement was indeed a simple, low-paid, certified agreement. The Commission was satisfied that the agreement had been made in good faith and after appropriate consultation between the parties. The terms and conditions of the agreement were deemed fair and reasonable, and the Commission was satisfied that the process by which the agreement was made complied with the requirements of the Fair Work Act. Consequently, the Commission approved the agreement as a simple, low-paid, certified agreement.

The Commission made an order approving the Tiling Waterproofing Services Enterprise Agreement 2023 as a simple, low-paid, certified agreement, effective from 1 March 2023. The agreement was to apply to all employees of Tiling Waterproofing Services Pty Ltd who were party to the agreement, and the approval was to remain in effect until such time as it was replaced by a new agreement or terminated in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established