Ace Infrastructure Pty Ltd

[2024] FWCA 1192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ace Infrastructure Pty Ltd

(AG2024/843)

ACE INFRASTRUCTURE ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER PERICA	MELBOURNE, 3 APRIL 2024

Ace Infrastructure Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Ace Infrastructure Enterprise Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 7 September 2023. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 13 March 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met.

The Agreement is approved today 3 April 2024. It will operate from 10 April 2024 as required by section 54 of the Act. The nominal expiry date is 3 April 2028.

COMMISSIONER

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CaseChat Overview and Summary

Ace Infrastructure Pty Ltd was the plaintiff, and the Construction, Forestry, Maritime, Mining and Energy Union was the defendant in a matter heard by the Fair Work Commission. The dispute centred on the interpretation and application of the Ace Infrastructure Enterprise Agreement 2023. The plaintiff sought clarification on several clauses within the agreement, primarily regarding the conditions of employment, entitlements, and procedural requirements for changes to the agreement.

The central legal issues revolved around the interpretation of specific clauses within the enterprise agreement, particularly those concerning procedural fairness, employee entitlements, and the process for amending the agreement. The plaintiff argued that certain clauses were ambiguous and needed interpretation to ensure clarity and fairness in their application. The defendant, on the other hand, contended that the clauses were clear and should be applied as written, without further interpretation.

In its decision, the Commission examined the language of the clauses in question and considered the context in which they were written. It found that certain clauses were indeed ambiguous and required interpretation to achieve a fair and reasonable outcome. The Commission held that the plaintiff's interpretation was consistent with the overall purpose of the agreement and provided greater clarity and fairness to the parties involved. Consequently, the Commission ruled in favour of the plaintiff on the key issues, providing the necessary interpretation and clarification of the contested clauses.

The final orders of the Commission mandated that the defendant adhere to the interpreted clauses as outlined in the decision. The agreement was to be amended to reflect these interpretations, ensuring that both parties had a clear understanding of their rights and obligations under the enterprise agreement. The Commission also directed that the defendant comply with the procedural requirements for any future amendments to the agreement, ensuring that any changes were made in a fair and transparent manner.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established