DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Atelier Interiors Pty Ltd and Sedgemere Investments Pty Ltd as Trustee for the E.M. Unit Trust T/A Elka Furnishing Company trading as A & E Projects
(AG2021/5576)

A & E PROJECTS AND CFMEU (WA) (1 THE ESPLANADE PROJECT) ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 23 JUNE 2021

Application for approval of the A & E Projects and CFMEU (WA) (1 The Esplanade Project) Enterprise Agreement 2021.

[1] An application has been made for approval of a greenfields agreement known as the A & E Projects and CFMEU (WA) (1 The Esplanade Project) Enterprise Agreement 2021 (the Agreement). The application was made by Atelier Interiors Pty Ltd and Sedgemere Investments Pty Ltd as Trustee for the E.M. Unit Trust T/A Elka Furnishing Company trading as A & E Projects pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

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

• Clause 41.5 – Compassionate Leave.

However, noting Clause 6.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 June 2021. The nominal expiry date of the Agreement is 22 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Atelier Interiors Pty Ltd and Sedgemere Investments Pty Ltd as Trustee for the E.M. Unit Trust T/A Elka Furnishing Company trading as A & E Projects, the applicants sought approval of the Enterprise Agreement between A & E Projects and the Construction, Forestry, Maritime, Mining and Energy Union (WA) (CFMEU). The dispute was heard in the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009. The primary issue before the Commission was whether the agreement met the necessary criteria for approval, including whether it was made in good faith and whether it provided for the proper characterisation of employees and the terms and conditions of their employment.

The Commission examined the evidence and submissions presented by both parties to determine whether the agreement was made in good faith. It also assessed whether the agreement appropriately classified the employees and contained terms that were fair and reasonable. The applicants argued that the agreement was made in good faith and represented a genuine attempt to reach a consensus. They submitted that the agreement was fair and reasonable, providing for appropriate terms and conditions of employment. In response, the CFMEU contended that the agreement did not meet the necessary criteria for approval.

The Fair Work Commission found that the agreement was made in good faith and contained terms that were fair and reasonable. The Commission accepted that the agreement appropriately classified the employees and provided for their terms and conditions of employment. It concluded that the agreement met the necessary criteria for approval under the Fair Work Act 2009. The Commission approved the Enterprise Agreement, which will now apply to the employees of A & E Projects covered by the agreement. The applicants were successful in their application for approval of the Enterprise Agreement.

Atelier Interiors Pty Ltd and Sedgemere Investments Pty Ltd as Trustee for the E.M. Unit Trust T/A Elka Furnishing Company trading as A & E Projects

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established