DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AE Smith & Sons Pty Ltd
(AG2016/5885)

A E SMITH & SONS TASMANIA CONSTRUCTION ENTERPRISE AGREEMENT 2016 - 2018

Tasmania
COMMISSIONER LEE	MELBOURNE, 14 NOVEMBER 2016

Application for approval of the A E Smith & Sons Tasmania Construction Enterprise Agreement 2016 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the A E Smith & Sons Tasmania Construction Enterprise Agreement 2016 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AE Smith & Sons 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 November 2016. The nominal expiry date of the Agreement is 1 May 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

AE Smith & Sons Pty Ltd, an employer, filed an application seeking the approval of the A E Smith & Sons Tasmania Construction Enterprise Agreement 2016 - 2018. The application was made to the Fair Work Commission, which was required to determine whether the agreement met the requirements under the Fair Work Act 2009. The dispute centred on the procedural fairness and the fairness of the terms and conditions of the proposed agreement, particularly in relation to the impact on employees’ rights and protections.

The primary legal issues before the Commission were whether the agreement had been made in accordance with the procedural requirements set out in the Fair Work Act and whether the terms of the agreement were fair. The Commission needed to ensure that the agreement was genuinely negotiated, that it contained terms and conditions that were fair and reasonable, and that it did not undermine the rights and protections of employees. The employer argued that the agreement was the result of genuine bargaining, while the employees’ representative contended that certain terms were unfair and that the process was flawed.

The Fair Work Commission found that the agreement had been genuinely negotiated and that the process followed was procedurally fair. The Commission determined that the terms and conditions of the agreement were fair and reasonable, taking into account the specific circumstances of the enterprise and the bargaining context. The Commission concluded that the agreement did not undermine the rights and protections of employees and met the criteria for approval under the Fair Work Act.

The Commission approved the A E Smith & Sons Tasmania Construction Enterprise Agreement 2016 - 2018, thereby resolving the application in favour of the employer. The approval was subject to the terms and conditions outlined in the agreement, which would now apply to the employees covered by the agreement.

AE Smith & Sons 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