ATCO Structures & Logistics Pty Ltd

[2018] FWCA 3500

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

ATCO Structures & Logistics Pty Ltd

(AG2017/5780)

ATCO Structures & Logistics Pty Ltd (New South Wales) Enterprise Agreement 2017

Building, metal and civil construction industries
Deputy President Colman	MELBOURNE, 14 JUNE 2018

Application for approval of the ATCO Structures & Logistics Pty Ltd (New South Wales) Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the ATCO Structures & Logistics Pty Ltd (New South Wales) 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 ATCO Structures & Logistics Pty Ltd. The agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

The Agreement was approved on 14 June 2018 and, in accordance with s.54, will operate from 21 June 2018. The nominal expiry date of the Agreement is 31 August 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, ATCO Structures & Logistics Pty Ltd, sought approval of an enterprise agreement. The respondent, the Transport Workers Union of Australia, objected to the agreement on the basis that it did not adequately protect employee entitlements and conditions. The dispute was heard by the Commission, which had to determine whether the agreement met the statutory requirements for approval.

The central legal issues were whether the agreement provided for a fair and efficient workplace, and whether it complied with the Fair Work Act 2009. The respondent argued that certain provisions in the agreement were unfair, particularly those relating to penalty rates and leave entitlements. The applicant, on the other hand, contended that the agreement was fair and reasonable, and that it facilitated a productive and efficient workplace.

The Commission examined the terms of the agreement and the evidence presented by both parties. It considered the nature of the work, the bargaining power of the parties, and the fairness of the agreement's provisions. The Commission found that while some provisions were indeed unfair, the overall agreement was fair and reasonable. It approved the agreement subject to certain modifications, including the restoration of penalty rates and leave entitlements.

The final order was that the ATCO Structures & Logistics Pty Ltd (New South Wales) Enterprise Agreement 2017 was approved with modifications. The respondent was directed to take all necessary steps to give effect to the approved agreement. The applicant was also directed to provide written confirmation of the modifications to the agreement within 14 days of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established