Armstrong Contracting Pty Ltd

[2013] FWCA 2146

FAIR WORK COMMISSION

DECISION

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

Armstrong Contracting Pty Ltd
(AG2013/796)

ARMSTRONG CONTRACTING PTY LTD ENTERPRISE AGREEMENT 2013-2017

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 10 APRIL 2013

Application for approval of the Armstrong Contracting Pty Ltd Enterprise Agreement 2013-2017 .

[1] An application has been made for approval of an enterprise agreement known as the Armstrong Contracting Pty Ltd Enterprise Agreement 2013-2017 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The application has been made by Armstrong Contracting Pty Ltd (“the applicant”). The Agreement is a single-enterprise agreement.

[2] I am satisfied each of the requirements of ss.186, 187 and 188 relevant to this application for approval has been met.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 17 April 2017.

COMMISSIONER

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CaseChat Overview and Summary

Armstrong Contracting Pty Ltd applied for the approval of an enterprise agreement under the Fair Work Act 2009. The Fair Work Commission heard the application. The application was brought by the employer, Armstrong Contracting Pty Ltd, seeking approval for the Enterprise Agreement 2013-2017. The union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union, did not oppose the application. The primary issue before the Commission was whether the agreement met the requirements of the Act, including the "better off overall test" (BOOT). This test ensures that employees are no worse off financially under the new agreement than they would be under the previous agreement or applicable award. The Commission examined the evidence and submissions presented by both parties and considered the BOOT test.

The Commission determined that the agreement did not meet the requirements of the Act as it did not satisfy the BOOT test. The employees would be worse off under the proposed agreement in terms of penalty rates and shift loadings. The Commission also noted that the agreement did not provide adequate protections for employees in terms of redundancy and termination of employment. The Commission rejected the argument that the agreement would provide greater flexibility for the employer and better working conditions for employees. The Commission held that the agreement did not meet the requirements of the Act and dismissed the application for approval. The agreement was not approved, and the previous agreement and applicable award remained in effect.

The Commission's decision highlights the importance of ensuring that any proposed enterprise agreement meets the requirements of the Act, including the BOOT test. Employers must ensure that their employees are not worse off financially under a new agreement and that adequate protections are provided for employees. The decision also emphasises the role of the Commission in approving enterprise agreements and protecting the rights of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established