Asclear Pty Ltd

[2013] FWCA 2328

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Asclear Pty Ltd
(AG2013/5984)

ASCLEAR PTY LTD PSN ESSO BASS STRAIT ONSHORE/OFFSHORE FACILITIES CONSTRUCTION (CFMEU) AGREEMENT 2012-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 17 APRIL 2013

Application for approval of the Asclear Pty Ltd PSN ESSO Bass Strait Onshore/Offshore Facilities Construction (CFMEU) Agreement 2012-2015.

[1] An application has been made for approval of an enterprise agreement known as the Asclear Pty Ltd PSN ESSO Bass Strait Onshore/Offshore Facilities Construction (CFMEU) Agreement 2012-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Asclear Pty Ltd. The agreement is a single enterprise agreement.

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

[3] The Construction, Forestry, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[4] The Agreement was approved on 17 April 2013 and, in accordance with s.54, will operate from 24 April 2013. The nominal expiry date of the Agreement is 6 December 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter in Asclear Pty Ltd concerned an application for approval of the Asclear Pty Ltd PSN ESSO Bass Strait Onshore/Offshore Facilities Construction (CFMEU) Agreement 2012-2015. The applicant, Asclear Pty Ltd, sought approval of the agreement from the Fair Work Commission. The Australian Council of Trade Unions (ACTU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application. The dispute centred on whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issues the court had to resolve were whether the agreement contained the necessary provisions to ensure it was a "better off overall test" (BOOT) agreement and whether it complied with relevant industrial laws. Specifically, the court needed to determine if the agreement provided fair and reasonable terms for the employees and if it complied with the procedural requirements set out in the Fair Work Act. The opposition argued that the agreement did not adequately address certain conditions and benefits for the employees.

The Fair Work Commission, in its decision, found that the agreement was fair and reasonable. It concluded that the proposed terms were better for the employees than what they would have under a greenfields agreement. The court noted that the agreement included provisions that met the BOOT criteria and that it complied with the procedural requirements of the Fair Work Act. The Commission determined that the agreement was in the best interest of the employees and approved it. The opposition's arguments were not sufficient to overturn the application.

The Fair Work Commission approved the Asclear Pty Ltd PSN ESSO Bass Strait Onshore/Offshore Facilities Construction (CFMEU) Agreement 2012-2015. The court held that the agreement was fair and reasonable and met the necessary criteria under the Fair Work Act. The decision was made in favour of the applicant, and the agreement was approved for implementation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established