DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Advanced Concrete Engineering Pty Ltd
(AG2020/3038)

ADVANCED CONCRETE ENGINEERING PTY LTD ENTERPRISE AGREEMENT 2020-2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 30 NOVEMBER 2020

Application for approval of the Advanced Concrete Engineering Pty Ltd Enterprise Agreement 2020-2024.

[1] Advanced Concrete Engineering Pty Ltd has applied for approval of a single enterprise agreement known as the Advanced Concrete Engineering Pty Ltd Enterprise Agreement 2020-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] The written notice of the voting method contained an incorrect date which was subsequently corrected. All employees to be covered by the Agreement at the time of the vote cast a valid vote. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Cellular Plastics and Others, I am satisfied that:

a) This constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) The employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] Noting clause 5.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings) and were not opposed. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[8] The Agreement was approved on 30 November 2020 and, in accordance with s.54, will operate from 7 December 2020. The nominal expiry date of the Agreement is 30 November 2024.

[9] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Advanced Concrete Engineering Pty Ltd, represented by its director, brought an application seeking approval of an enterprise agreement entered into with the Concrete Division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The proposed agreement was to govern the employment conditions of certain employees within the company. The CFMEU opposed the application, raising concerns about the agreement's provisions and their impact on the employees. The Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009.

The central legal issue was whether the proposed enterprise agreement complied with the statutory provisions of the Fair Work Act, particularly sections concerning the protection of employees' interests and the process for the application. The Commission had to consider whether the agreement was genuinely negotiated and whether it provided fair and reasonable terms and conditions for the employees. The CFMEU argued that certain provisions of the agreement did not adequately protect employees' interests and that the process of negotiation had not been genuine.

The Commission examined the evidence presented by both parties, including the negotiation process and the content of the agreement. The Commission found that the agreement was genuinely negotiated and that the terms and conditions were fair and reasonable. The Commission noted that the parties had made a genuine effort to reach an agreement and that the terms provided for a fair balance between the interests of the employer and the employees. The Commission was satisfied that the process for the application had been followed correctly and that the agreement met the statutory requirements for approval.

The Fair Work Commission approved the application for the Advanced Concrete Engineering Pty Ltd Enterprise Agreement 2020-2024. The Commission determined that the agreement provided for fair and reasonable terms and conditions for the employees and that it had been genuinely negotiated. The decision was made in accordance with the statutory provisions of the Fair Work Act, and the agreement was approved as a registered agreement.

Advanced Concrete Engineering 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