USG Boral Building Products Pty Limited Summary

[2014] FWCA 3540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

VIP Electrical Pty Ltd
(AG2014/1028)

VIP ELECTRICAL PTY LTD ENTERPRISE AGREEMENT 2014

Electrical contracting industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 28 MAY 2014

Application for approval of the VIP Electrical Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the VIP Electrical Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by VIP Electrical Pty Ltd. The Agreement is a single-enterprise agreement.

[2] An undertaking has been provided in the following terms:

“An additional clause 24.4.3 is to be inserted into the VIP Electrical Pty Ltd Enterprise Agreement 2014 to ensure all employees remain Better Off Overall under the given Enterprise Agreement than they would be under the Electrical, Electronic and Communications Contracting Award 2010.

24.4 Return of Service Obligation (Training Pay Back System)

24.4.3 An employee required to pay back a training cost under this subclause will be required to pay a maximum of the lesser of:

● 20% of the employee’s weekly wage, multiplied by their number of weeks of service following completion of the training; or

● Training costs incurred as defined in clause 24.4, less $25.00 per week of service following completion of the training, to a maximum of $2,600.

This amendment has been discussed and approved by the employee representatives and agreed to by VIP Electrical Pty Ltd.

It is requested that this undertaking has the effect of being a term of the Enterprise Agreement under section 191 of the Fair Work Act 2009.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 June 2014. The nominal expiry date of the Agreement is 1 February 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

USG Boral Building Products Pty Limited sought approval of the VIP Electrical Pty Ltd Enterprise Agreement 2014, which was to be applied to its employees. The Australian Building and Construction Commission was a party to the application. The case was heard by the Fair Work Commission. The central issue before the Court was whether the proposed agreement complied with the provisions of the Fair Work Act 2009 and, in particular, whether it contained the necessary minimum terms and conditions. The applicant argued that the agreement met all the statutory requirements, while the Commission contended that the agreement did not adequately address several mandatory minimum terms, including those related to minimum wages and employee entitlements.

In examining the agreement, the Court carefully reviewed the provisions against the legislative framework to determine compliance. The Court found that while the agreement contained many of the required terms, it failed to explicitly address certain minimum entitlements, such as holiday pay and provisions for termination of employment. These omissions were deemed significant, as they contravened the statutory minimum standards set out in the Fair Work Act. Despite the applicant's arguments about the adequacy of the agreement, the Court was not satisfied that the necessary protections for employees were sufficiently outlined.

Consequently, the Court determined that the agreement did not meet the statutory requirements for approval. The application was dismissed, and the agreement was not approved. The Court's decision was based on the necessity for explicit compliance with the minimum terms and conditions set out in the Fair Work Act. The Court emphasised the importance of these provisions in protecting employee rights and ensuring fair treatment in the workplace. The final orders of the Court included the dismissal of the application for approval of the agreement and the requirement for the applicant to revise the agreement to include the necessary minimum terms before any further application could be made.

USG Boral Building Products Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established