DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Abyss Construction Pty Ltd
(AG2018/3358)

ABYSS CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 29 NOVEMBER 2018

Application for approval of the Abyss Construction Pty Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Abyss Construction Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Abyss Construction 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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] The Agreement was approved on 29 November 2018 and, in accordance with s.54, will operate from 6 December 2018. The nominal expiry date of the Agreement is 29 November 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission (FWC) was for approval of the Abyss Construction Pty Ltd Enterprise Agreement 2018. The application was made by Abyss Construction Pty Ltd, and the respondents were the unions representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Electrical Trades Union of Australia (ETUA). The agreement sought to regulate the terms and conditions of employment for employees within the construction industry, and the dispute centred around whether the agreement met the requirements under the Fair Work Act 2009.

The primary legal issues for the FWC to consider were whether the agreement had been made in accordance with the procedural requirements set out in the Act, and whether the agreement contained terms that were contrary to the public interest or contrary to the "better off overall test" (BOOT). The unions argued that the agreement did not meet the procedural requirements as it had not been made "without compulsion" and that it contained terms that were contrary to the public interest, particularly in relation to penalty rates for Sunday work.

The FWC found that the agreement had been made in accordance with the procedural requirements of the Act, and that there was no evidence of compulsion. The FWC also found that the agreement did not contain terms that were contrary to the public interest, and that the penalty rates for Sunday work were not contrary to the BOOT. The FWC noted that the agreement provided for a number of benefits to employees, including increased wages, and that the penalty rates for Sunday work were consistent with industry practice. The FWC was satisfied that the agreement was made in good faith and that it provided for a fair and reasonable outcome for both parties.

The FWC approved the Abyss Construction Pty Ltd Enterprise Agreement 2018, and it will now be registered with the Fair Work Ombudsman. The agreement will apply to employees of Abyss Construction Pty Ltd and will regulate their terms and conditions of employment. The unions have the right to apply to the FWC for a review of the agreement if they believe that it is not being complied with.

Abyss Construction Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established