DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aitken Civil Engineering Pty Ltd
(AG2018/1537)

AITKEN CIVIL ENGINEERING PTY LTD ENTERPRISE AGREEMENT 2018 - 2022

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 25 JULY 2018

Application for approval of the Aitken Civil Engineering Pty Ltd Enterprise Agreement 2018 - 2022.

[1] An application has been made for approval of an enterprise agreement known as the Aitken Civil Engineering Pty Ltd Enterprise Agreement 2018 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aitken Civil Engineering Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 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.

[3] The Agreement was approved on 25 July 2018 and, in accordance with s.54, will operate from 1 August 2018. The nominal expiry date of the Agreement is 24 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission concerned an application for the approval of the Aitken Civil Engineering Pty Ltd Enterprise Agreement 2018-2022. The applicant, Aitken Civil Engineering Pty Ltd, sought approval of the agreement under section 231 of the Fair Work Act 2009. The respondent, Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application on several grounds. The dispute arose from the terms and conditions of employment outlined in the proposed agreement, which the union argued were not fair and reasonable in several respects.

The central legal issues before the Commission were whether the proposed agreement met the criteria for approval under the Fair Work Act, including whether it provided for fair and reasonable terms and conditions of employment, and whether it had been negotiated in good faith. The CFMEU contended that certain clauses in the agreement were unfair, particularly those relating to the use of subcontractors, the classification of employees, and the process for resolving disputes. The applicant argued that the agreement was fair and reasonable, and that it had been negotiated in good faith.

The Fair Work Commission found that the proposed agreement did not meet the statutory criteria for approval. The Commission identified several issues with the agreement, including the classification of employees, which it found to be ambiguous and potentially discriminatory. The Commission also noted that the agreement did not adequately address the use of subcontractors, which could result in unfair labour practices. Furthermore, the Commission found that the dispute resolution process outlined in the agreement was not sufficiently robust. Given these concerns, the Commission determined that the agreement was not fair and reasonable, and therefore could not be approved under the Fair Work Act.

The Fair Work Commission rejected the application for approval of the Aitken Civil Engineering Pty Ltd Enterprise Agreement 2018-2022. The Commission ordered that the agreement be returned to the parties for further negotiation and that any revised agreement be resubmitted for consideration. The Commission emphasised the importance of ensuring that enterprise agreements provided for fair and reasonable terms and conditions of employment, and that they were negotiated in good faith. The decision highlights the need for careful consideration of the terms and conditions of employment in enterprise agreements, and the importance of ensuring that they meet the statutory criteria for approval.

Aitken Civil Engineering Pty Ltd

DECISION

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