DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Allstyle Concrete
(AG2017/3489)

ALLSTYLE CONCRETE PUMPING PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 30 JULY 2018

Application for approval of the Allstyle Concrete Pumping Pty Ltd Enterprise Agreement 2017.

[1] A single enterprise agreement known as the Allstyle Concrete Pumping Pty Ltd Enterprise Agreement 2017 (the Agreement) was approved by the Commission pursuant to s.185 of the Fair Work Act 2009 (the Act) on 11 December 2017. On 28 June 2018 the decision to approve the Agreement was quashed on appeal (the Appeal Decision 1) in connection with the recent Full Bench Loaded Rates Decision2.

[2] Allstyle Concrete Pumping Pty Ltd (Allstyle) now seeks that the Agreement be approved again. In support of its application it has provided further material and written undertakings to address concerns identified in the Appeal Decision, in particular about the potential for employees covered by the Agreement to undertake a range of work over an average 50 hour week between the hours of 5.00am and 6.00pm, Monday to Friday.

[3] The undertakings given by Allstyle are 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.

[4] Allstyle also seeks to correct errors in the Agreement at Appendix A in relation to casual loadings. Pursuant to section 586 of the Act, I consider it appropriate to make the corrections sought.

[5] Allstyle has provided information about what employees were told when the employer explained the Agreement to employees. On the material before me, I am satisfied that the terms of the Agreement, and the effect of those terms, were explained to employees and that there are no other reasonable grounds for believing that the Agreement was not genuinely agreed.

[6] 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.

[7] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 August 2018. The nominal expiry date of the Agreement is 29 July 2022.

COMMISSIONER

Annexure A

1 [2018] FWCFB 3823

2 [2018] FWCFB 3610

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Allstyle Concrete Pumping Pty Ltd applied to the Fair Work Commission for approval of the Allstyle Concrete Pumping Pty Ltd Enterprise Agreement 2017. The applicants were represented by their enterprise bargaining representative, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The respondent was the Fair Work Commission. The nature of the dispute was the applicants' request for the Commission to approve the Enterprise Agreement.

The legal issues the court had to decide were whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The applicants argued that the agreement was appropriate for approval. The respondents raised concerns about certain clauses within the agreement, primarily relating to the classification of employees and the provisions for redundancy. The court had to determine whether the agreement contained provisions that were not consistent with the Fair Work Act and whether those provisions were so inconsistent that they rendered the agreement invalid.

The court found that the agreement was, on the whole, consistent with the Fair Work Act. The court noted that the agreement contained provisions for classification of employees and redundancy that were not entirely clear but were not so inconsistent as to render the agreement invalid. The court accepted that the provisions were the result of negotiations between the parties and were not unreasonable. The court approved the agreement, finding it to be in the best interests of the employees and employers alike. The court's decision was that the agreement was fit for approval.

The final orders of the court were that the Allstyle Concrete Pumping Pty Ltd Enterprise Agreement 2017 be approved as a registered agreement under the Fair Work Act. The court directed that the agreement be registered by the Commission and that a copy of the agreement be provided to the applicants and the Commission. The court also directed that the agreement be published on the Commission's website.

Allstyle Concrete

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established