DECISION

Fair Work Act 2009
s.185—Enterprise agreement

APS (WA) Pty Ltd
(AG2017/452)

APS (WA) PTY LTD BARROW ISLAND ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 14 MARCH 2017

Application for approval of the APS (WA) Pty Ltd Barrow Island Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the APS (WA) Pty Ltd Barrow Island 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 APS (WA) 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 March 2017. The nominal expiry date of the Agreement is 13 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, APS (WA) Pty Ltd applied for the approval of the APS (WA) Pty Ltd Barrow Island Enterprise Agreement 2017. The applicant is a company involved in the construction industry and the respondent was the Construction, Forestry, Maritime, Mining and Energy Union, representing the employees. The dispute centred on the terms and conditions of employment as set out in the proposed agreement, including wages, hours of work, and other employment-related matters.

The primary legal issue before the Commission was whether the agreement complied with the requirements of the Fair Work Act 2009, including whether it was a "better off overall test" (BOOT) agreement. This test requires that the proposed agreement must not put employees or employers worse off overall than their current terms and conditions of employment. The Commission also needed to consider whether the agreement met the "independent" and "genuine" bargaining requirements.

The Fair Work Commission found that the agreement was a BOOT agreement, as it provided for improved conditions and protections for employees, without disadvantaging employers. The Commission concluded that the agreement was the product of genuine and independent bargaining between the parties. The Commission took into account the complexity of the agreement, the negotiations between the parties, and the fact that the union had sought independent legal advice. The Commission was satisfied that the agreement met all the necessary legal requirements and approved the proposed agreement.

The Fair Work Commission approved the APS (WA) Pty Ltd Barrow Island Enterprise Agreement 2017, recognising its compliance with the Fair Work Act 2009 and its status as a genuine and independent bargaining outcome. This decision will have implications for future enterprise agreements in the construction industry and highlights the importance of ensuring that such agreements meet the statutory requirements.

APS (WA) 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