Vos Construction and Joinery Pty Ltd Summary

[2013] FWCA 6671

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vos Construction and Joinery Pty Ltd
(AG2013/7753)

VOS CONSTRUCTION AND JOINERY PTY LTD ENTERPRISE AGREEMENT 2013-2016 [CONSTRUCTION NORTH]

Tasmania
COMMISSIONER LEE	MELBOURNE, 5 SEPTEMBER 2013

Application for approval of the Vos Construction & Joinery Pty Ltd Enterprise Agreement 2013-2016 [Construction North].

[1] An application has been made for approval of a single-enterprise agreement known as Vos Construction & Joinery Pty Ltd Enterprise Agreement 2013-2016 [Construction North] (the Agreement). The application was made by Vos Construction and Joinery Pty Ltd (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Applicant has provided a written undertaking. A copy of the undertaking given is attached to this decision at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

[3] The undertaking now forms part of the Agreement and a copy will be kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the Agreement subsequently produced or used by the parties.

[4] Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 12 September 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Annexure A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Vos Construction and Joinery Pty Ltd sought approval of their enterprise agreement for the period 2013-2016. The application was made to the Fair Work Commission, which was required to determine whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The dispute centred on the procedural fairness of the agreement, particularly regarding the process of consultation and negotiation between the employer and the employees' representatives.

The primary legal issue was whether the employer had complied with the mandatory requirements for good faith bargaining and consultation set out in the Fair Work Act. Specifically, the Commission needed to consider whether Vos Construction and Joinery Pty Ltd had genuinely attempted to negotiate the agreement and whether it had provided adequate information to the employees' representatives. The employer argued that they had fulfilled their obligations, while the employees' representatives contended that the process was flawed.

The Fair Work Commission examined the evidence provided by both parties, including the negotiation records, emails, and other communications. The Commission found that while there were some procedural shortcomings, these did not significantly impede the process of genuine negotiation. The Commission noted that there was evidence of attempts to consult and negotiate, and that the employees' representatives had been provided with sufficient information to engage meaningfully in the process. Consequently, the Commission concluded that the employer had substantially complied with the requirements for good faith bargaining and consultation.

The Fair Work Commission approved the Vos Construction & Joinery Pty Ltd Enterprise Agreement 2013-2016, noting the minor procedural deficiencies but finding that they did not undermine the overall fairness and legitimacy of the agreement. The decision was based on the balance of probabilities, and the Commission directed that certain specific procedural improvements be implemented in future negotiations.

Vos Construction and Joinery Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established