Ark Construction Group Pty Ltd Summary

[2013] FWCA 74

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Ark Construction Group Pty Ltd
(AG2012/13089)

ARK CONSTRUCTION GROUP PTY LTD ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 7 JANUARY 2013

Application for approval of the Ark Construction Group Pty Ltd Enterprise Agreement 2012.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 20 December 2012 by Ark Construction Group Pty Ltd for the approval of a single-enterprise agreement known as the Ark Construction Group Pty Ltd Enterprise Agreement 2012 (“the Agreement”).

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ark Construction Group Pty Ltd applied to the Fair Work Commission for approval of the Ark Construction Group Pty Ltd Enterprise Agreement 2012. The applicant, a construction company, and the respondent, the Construction, Forestry, Maritime, Mining and Energy Union, had entered into an enterprise agreement. The dispute arose over whether the agreement complied with the Fair Work Act 2009. The Fair Work Commission was tasked with determining if the agreement met the statutory requirements for approval, including provisions regarding pay rates, working hours, and other employment conditions.

The legal issues before the Commission were whether the agreement complied with the Fair Work Act 2009 and whether it satisfied the "better off overall test." This test required the Commission to consider whether the employees would be better off overall under the proposed agreement compared to the applicable award or safety net. The Commission also needed to determine if the agreement contained all mandatory provisions as required by the Act and if it had been genuinely negotiated between the parties.

The Fair Work Commission found that the proposed agreement did not comply with the statutory requirements for approval. The agreement did not contain a clause that specified the rates of pay for all employees, which was a mandatory provision under the Fair Work Act 2009. Additionally, the agreement did not meet the "better off overall test" because it did not provide sufficient protections for employees in terms of pay rates and working conditions. The Commission also noted that there were procedural issues in the negotiation process that did not meet the statutory requirements. Consequently, the application for approval of the agreement was dismissed.

The Fair Work Commission ordered that the application for approval of the Ark Construction Group Pty Ltd Enterprise Agreement 2012 be dismissed. The Commission directed the parties to address the deficiencies in the agreement and to resubmit a revised version for consideration. The decision highlighted the importance of ensuring that enterprise agreements comply with the Fair Work Act 2009 and that they genuinely benefit employees.

Ark Construction Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established