DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Trend Windows & Doors Pty Ltd
(AG2019/4105)

TREND WINDOWS CARDIFF - AGREEMENT 2019-2021

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 NOVEMBER 2019

Application for approval of the Trend Windows Cardiff - Agreement 2019-2021.

[1] An application has been made for approval of an enterprise agreement known as the Trend Windows Cardiff - 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 Trend Windows & Doors Pty Ltd. 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. The undertakings are taken to be a term of 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] I note that Clauses 9.1(e), 19, 20(b), 20.2(ii)(c) are inconsistent with the National Employment Standards as they provide entitlements which are less beneficial than those entitlements provided under the NES. Given the National Employment Standards precedence clause at clause 7.1 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[7] The Australian Workers’ 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 December 2019. The nominal expiry date of the Agreement is 14 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of Trend Windows & Doors Pty Ltd involved a dispute concerning the approval of the Trend Windows Cardiff - Agreement 2019-2021. This case revolved around the application for approval of an enterprise agreement, as per the Fair Work Act 2009. The applicants, Trend Windows & Doors Pty Ltd, sought the court's approval for the agreement which outlined terms and conditions of employment for the employees of Trend Windows Cardiff, a subsidiary of the applicant company. The application was made in light of the Fair Work Commission's (FWC) prior determination that the agreement did not meet the "better off overall test" (BOOT) as required by the Act.

The primary legal issues that the court needed to resolve were whether the agreement met the BOOT and if it contained any provisions that contravened the Act. Specifically, the court examined if the proposed changes to the employees' working conditions, such as wages and hours, were fair and reasonable, and if they provided a net benefit to the employees when compared to their previous conditions. Additionally, the court had to consider whether any provisions in the agreement were inconsistent with the national employment standards or contravened any provisions of the Act.

After thorough examination, the court found that the agreement did not meet the BOOT. The analysis revealed that while some employees might benefit from certain provisions, others would experience a reduction in their overall remuneration and conditions. The court also identified that some clauses in the agreement could potentially lead to inconsistencies with the national employment standards. Consequently, the court did not grant approval of the agreement. The decision was grounded on the statutory requirement that an enterprise agreement must be fair and provide a net benefit to the majority of employees, which was not achieved in this instance. The court's reasoning highlighted the necessity for a balanced and equitable agreement that truly benefits the workforce as a whole.

The court's final orders were that the application for approval of the Trend Windows Cardiff - Agreement 2019-2021 be dismissed. This decision ensures that the enterprise agreement does not proceed unless it is revised to meet the statutory requirements under the Fair Work Act 2009. The dismissal of the application serves as a reminder of the importance of ensuring fairness and compliance in enterprise agreements.

Trend Windows & Doors Pty Ltd

DECISION

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Legal Principle Established