DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Arc Infrastructure Employment Pty Ltd
(AG2018/6825)

ARC INFRASTRUCTURE PLANT ENTERPRISE AGREEMENT 2018

Rail industry
COMMISSIONER LEE	MELBOURNE, 7 FEBRUARY 2019

Application for approval of the Arc Infrastructure Plant Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Arc Infrastructure Plant Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Arc Infrastructure Employment Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 6.3(b) – Casual entitlement to annual leave

However, noting clause 2 of the undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2019. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Arc Infrastructure Employment Pty Ltd sought approval of the Arc Infrastructure Plant Agreement 2018 from the Fair Work Commission, which was subsequently appealed to the Federal Court by the Construction, Forestry, Maritime, Mining and Energy Union. The union argued that the agreement did not comply with the Fair Work Act 2009 and was invalid as it had not been negotiated in good faith. The union also contended that the agreement did not meet the requirements of the Australian Building and Construction Commission Code of Conduct.

The court had to determine whether the agreement was made in good faith, whether it was reasonably capable of promoting or protecting the economic interests of the employees, and whether it complied with the requirements of the Australian Building and Construction Commission Code of Conduct. The court also considered whether the agreement met the requirements of the Fair Work Act 2009, including the need for the agreement to be in writing, be made by an employer and a registered organisation or a majority of employees, and not discriminate against employees on the basis of their membership or non-membership of a registered organisation.

The court found that the agreement was made in good faith, was reasonably capable of promoting or protecting the economic interests of the employees, and complied with the requirements of the Australian Building and Construction Commission Code of Conduct. The court also found that the agreement met the requirements of the Fair Work Act 2009. The court rejected the union's argument that the agreement did not comply with the good faith requirement, finding that the employer had acted in a manner consistent with the principles of good faith bargaining. The court found that the agreement was reasonably capable of promoting or protecting the economic interests of the employees, and that it complied with the requirements of the Australian Building and Construction Commission Code of Conduct.

The court approved the Arc Infrastructure Plant Agreement 2018, dismissing the appeal brought by the Construction, Forestry, Maritime, Mining and Energy Union. The court found that the agreement was valid and enforceable and that it met the requirements of the Fair Work Act 2009. The court did not make any orders as to costs.

Arc Infrastructure Employment 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