DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AJP Bricklaying Pty Ltd
(AG2017/1301)

AJP BRICKLAYING CONTRACTORS ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 19 MAY 2017

Application for approval of the AJP Bricklaying Contractors Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the AJP Bricklaying Contractors Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AJP Bricklaying 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 and, in accordance with s.54, will operate from 26 May 2017. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

AJP Bricklaying Pty Ltd applied to the Fair Work Commission for approval of the AJP Bricklaying Contractors Enterprise Agreement 2017. The applicant sought to have the agreement approved under section 231 of the Fair Work Act 2009. The dispute arose from the application process, which required the agreement to be assessed for compliance with various provisions of the Act, including those relating to the "better off overall test" and the "no-disadvantage test".

The primary legal issue before the Commission was whether the agreement met the statutory requirements for approval, particularly in relation to the better off overall test. This test requires that employees under the agreement be no worse off financially and not materially disadvantaged in terms of other conditions of employment compared to their previous conditions. Additionally, the agreement had to satisfy the no-disadvantage test, ensuring that the terms of the agreement did not place employees in a position less favourable than their previous conditions. The Commission had to consider submissions from both the applicant and the Australian Building and Construction Commission, which represented the interests of the employees.

After evaluating the evidence and arguments presented, the Commission determined that the agreement did not meet the better off overall test as it failed to demonstrate that employees would be no worse off financially and not materially disadvantaged. The Commission found that several provisions of the agreement did not sufficiently protect employee entitlements and conditions. Consequently, the application for approval was rejected. The Commission's decision was based on a detailed analysis of the financial and non-financial terms of the agreement, as well as the overall impact on the employees.

The Fair Work Commission ordered that the application for approval of the AJP Bricklaying Contractors Enterprise Agreement 2017 be dismissed. The Commission's decision highlights the importance of meeting the statutory requirements for enterprise agreements, particularly in ensuring that employees are not disadvantaged under the new conditions. This ruling serves as a reminder for employers to carefully consider the implications of their agreements on employee rights and entitlements.

AJP Bricklaying 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