DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adbri Masonry Pty Ltd
(AG2015/4334)

ADBRI MASONRY PTY LTD AND THE AUSTRALIAN WORKERS UNION - TASMANIA ENTERPRISE AGREEMENT ULVERSTONE AND HOBART SITES 2015

Tasmania
COMMISSIONER ROE	MELBOURNE, 21 AUGUST 2015

Application for approval of the Adbri Masonry Pty Ltd and The Australian Workers Union - Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2015.

[1] An application has been made for approval of an enterprise agreement known as the Adbri Masonry Pty Ltd and The Australian Workers Union - Tasmania Enterprise Agreement Ulverstone and Hobart Sites 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Adbri Masonry 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 21 August 2015 and, in accordance with s.54, will operate from 28 August 2015. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Adbri Masonry Pty Ltd, and the Australian Workers Union - Tasmania sought approval for an enterprise agreement that would apply to employees at their Ulverstone and Hobart sites. The union represented the employees involved in the agreement. The crux of the dispute was whether the proposed enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009. The legal issues centred on whether the agreement provided for the compulsory resolution of all genuine disputes between the parties, whether it contained only matters that were reasonably related to the employment relationship, and whether it complied with the "better off overall test" under the Act.

The Commission found that the agreement did not adequately provide for the compulsory resolution of all genuine disputes between the parties. The union argued that the agreement should include a clause that mandated binding arbitration for disputes that could not be resolved through existing procedures. The Commission considered that the absence of such a clause meant the agreement did not meet the statutory requirement for compulsory dispute resolution. Additionally, the Commission found that the agreement contained matters that were not reasonably related to the employment relationship, which further undermined its approval. The Commission also noted that the "better off overall test" was not satisfied as the agreement did not demonstrate that employees would be better off overall with the proposed terms compared to their previous conditions.

As a result of these findings, the Fair Work Commission did not approve the enterprise agreement. The Commission emphasised the importance of meeting the statutory requirements for enterprise agreements to ensure fair and effective workplace relations. The decision underscores the necessity for enterprise agreements to comprehensively address dispute resolution mechanisms and to strictly pertain to matters related to employment. The Commission's decision provides clarity on the specific requirements that must be met for an enterprise agreement to be approved under the Fair Work Act 2009.

Adbri Masonry 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