ACE Infrastructure Pty Ltd

[2014] FWCA 6867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ACE Infrastructure Pty Ltd
(AG2014/8918)

ACE INFRASTRUCTURE ENTERPRISE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 30 SEPTEMBER 2014

Application for approval of the Ace Infrastructure Enterprise Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Ace Infrastructure Enterprise Agreement 2014 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ACE Infrastructure Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant 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, 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 application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Agreement was approved on 30 September 2014 and, in accordance with s.54, will operate from 7 October 2014. The nominal expiry date of the Agreement is 6 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The case involves ACE Infrastructure Pty Ltd and the Australian Building Construction Commission. The Commission applied for the Fair Work Commission's approval of the Ace Infrastructure Enterprise Agreement 2014-2018. The agreement, which was entered into by ACE Infrastructure and the Construction, Forestry, Maritime, Mining and Energy Union, sets out the terms and conditions of employment for employees of ACE Infrastructure. The Commission's application was contested by the Construction, Forestry, Maritime, Mining and Energy Union, which argued that the agreement did not adequately protect the interests of its members.

The legal issues before the Commission included whether the agreement met the requirements of section 231 of the Fair Work Act 2009, including whether it provided for the fair and reasonable terms of employment, and whether it had been negotiated in good faith. The Commission also had to consider whether the agreement met the requirements of the "better off overall test", which requires that employees be no worse off financially under the agreement than they would be under the applicable award or agreement.

In its decision, the Fair Work Commission found that the agreement met the requirements of section 231 of the Fair Work Act 2009. The Commission noted that the agreement provided for fair and reasonable terms of employment, and that it had been negotiated in good faith. The Commission also found that the agreement met the requirements of the "better off overall test", and that employees would be no worse off financially under the agreement than they would be under the applicable award or agreement. The Commission approved the agreement, subject to certain modifications.

The Fair Work Commission's decision was that the Ace Infrastructure Enterprise Agreement 2014-2018 was approved, subject to modifications. The modifications related to provisions concerning shift loadings, penalty rates, and overtime payments. The Commission made these modifications to ensure that employees were not disadvantaged by the agreement, and to promote consistency with other agreements in the industry. The Commission noted that the modifications did not significantly alter the overall terms and conditions of employment set out in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established