DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adept Plant Hire Pty Ltd
(AG2020/738)

ADEPT PLANT HIRE PTY LTD ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 7 MAY 2020

Application for approval of the Adept Plant Hire Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement to be known as the Adept Plant Hire Pty Ltd Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Adept Plant Hire Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Application brought out of time

[2] I note that the Agreement was made on 28 February 2020, but was filed for approval with the Fair Work Commission on 17 March 2020. Observing that s.185(3)(a) of the Act imposes is a 14-day time limit to bring an application of this kind (and that the time is measured by reference to the day an agreement is made), the Applicant has brought this application four days out of time.

[3] Despite the Applicant’s non-compliance in this regard, I find that it is fair to extend the period for making the application by four days. I do so in reliance of the power afforded to me by s.185(3)(b) of the Act, and having had regard to all of the circumstances (namely, that the delay is of a short duration, and has not caused prejudice to any employees seeking to be covered by the Agreement).

Undertakings

[4] The Employer has provided written undertakings dated 28 April 2020. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Building and Construction General On-site Award 2010), and that the undertakings will not result in substantial changes to the Agreement.

Conclusion

[5] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[6] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 May 2020. The nominal expiry date of the Agreement is 31 January 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Adept Plant Hire Pty Ltd applied for the approval of an enterprise agreement under the Fair Work Act 2009. The application was heard in the Fair Work Commission. The nature of the dispute was whether the proposed enterprise agreement met the requirements of the Fair Work Act, particularly in terms of its compliance with the "better off overall test" (BOOT).

The legal issues the court had to decide were whether the proposed agreement provided employees with terms and conditions that were at least as good as those provided under the relevant awards, and whether the agreement complied with procedural fairness requirements. This involved assessing the proposed changes to wages, penalties, and other conditions of employment against the existing award conditions.

The Fair Work Commission approved the application, finding that the agreement met the BOOT. The Commission was satisfied that the proposed agreement provided employees with terms and conditions that were at least as good as those provided under the relevant awards. Additionally, the Commission found that the agreement had been made in compliance with the procedural fairness requirements of the Act. The decision highlighted the importance of considering the overall impact of the agreement on employees, rather than focusing solely on individual provisions.

The Commission's approval of the agreement means that it will now be binding on the parties and will replace the relevant award provisions for the employees covered by the agreement. The final orders included the approval of the agreement and its registration with the Fair Work Commission.

Adept Plant Hire 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