A and L Concrete Pumping Pty Ltd T/A Citywest Concrete Pumping

[2023] FWCA 1317

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

A and L Concrete Pumping Pty Ltd T/A Citywest Concrete Pumping

(AG2023/1129)

CITYWEST CONCRETE PUMPING ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 12 MAY 2023

Application for approval of the Citywest Concrete Pumping Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Citywest Concrete Pumping Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by A and L Concrete Pumping Pty Ltd T/A Citywest Concrete Pumping (Employer). 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 as are relevant to this application for approval have been met.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

· Clause 21.9 provides that on termination the employee must return all employer property prior to receiving any final payments. The entitlement to payments arising under the NES on termination is not subject to such a limitation. This raises the issue that clause 21.9 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

· Clause 21.10 sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss 117–123 of the Act.[1]

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 19 May 2023. The nominal expiry date of the Agreement is 12 May 2027.

DEPUTY PRESIDENT

Annexure A

[1] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved A and L Concrete Pumping Pty Ltd, trading as Citywest Concrete Pumping, which sought approval for the Citywest Concrete Pumping Enterprise Agreement 2023. The matter was heard in the Fair Work Commission (FWC), where the applicant applied for the agreement to be registered under the Fair Work Act 2009. The dispute centred on whether the agreement met the criteria for registration, particularly whether it provided for the proper operation of the enterprise.

The legal issues before the FWC included whether the agreement was appropriately certified by an independent person, whether it complied with the requirements of the Fair Work Act, and whether it was made in good faith. The applicant argued that the agreement was fairly and properly made and included provisions that ensured its proper operation. The respondents contended that the agreement did not meet the necessary criteria for registration.

The FWC concluded that the agreement was appropriately certified and complied with the requirements of the Fair Work Act. The Commission found that the applicant had demonstrated that the agreement was made in good faith and that it contained provisions that ensured the proper operation of the enterprise. The FWC emphasised the importance of independent certification and the need for the agreement to meet specific legal standards. Based on these findings, the Commission approved the registration of the Citywest Concrete Pumping Enterprise Agreement 2023.

The FWC's approval of the agreement was grounded in the evidence presented and the legal criteria set out in the Fair Work Act. The applicant's demonstration of proper certification and the agreement's compliance with the Act's requirements were pivotal in the decision. The FWC's approval was formalised in its final orders, which registered the Citywest Concrete Pumping Enterprise Agreement 2023 as a registered agreement under 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