DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Austral Masonry (NSW) Pty Ltd
(AG2021/8001)

AUSTRAL MASONRY OAKDALE ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER MATHESON	SYDNEY, 10 NOVEMBER 2021

Application for approval of the Austral Masonry Oakdale Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Austral Masonry Oakdale Enterprise Agreement 2021 (Agreement). The application was made by Austral Masonry (NSW) Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement. The Applicant is the employer covered by the Agreement.

[2] A number of matters were identified, and responses and undertakings sought from the Applicant. The Applicant provided responses and an undertaking on 5 November 2021.

[3] Within its responses, the Applicant provided further documentation indicating that, of the 15 employees who cast a valid vote, 14 employees voted to approve the Agreement. Having considered the further explanation and materials provided by the Applicant, I am satisfied that there was an error made in the Application and pursuant to s.586(a) of the Act I allow a correction to the Form F17 to reflect that 14 employees voted to approve the Enterprise Agreement.

[4] Pursuant to section 190(4) of the Act, I must not accept an undertaking unless I have sought the views of each person I know is a bargaining representative for the Agreement. The views of the four bargaining representatives were sought regarding the undertakings. On 7 November 2021, one of the bargaining representatives confirmed that he supported the undertakings and did not wish to raise any further views or submissions in relation to the undertakings. A follow up email was sent to the other bargaining representatives on 9 November 2021 advising that if views were not provided the application would be determined based on the materials before the Commission. The bargaining representatives did not raise any views or objections in relation to the undertakings and did not raise any other matters of concern.

[5] I observe that clause 30(a) of the Agreement relating to personal/carer’s leave and Schedule A of the Agreement relating to redundancy pay may be inconsistent with the National Employment Standards (NES). However, noting the NES precedence undertaking provided in relation to 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.

[6] A copy of the undertakings is attached at Annexure A of this decision (Undertakings). I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[7] Pursuant to s.190(3) of the Act, I accept the Undertakings.

[8] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 November 2021. The nominal expiry date of the Agreement is three years from the date of approval.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the matter of Austral Masonry (NSW) Pty Ltd, the Fair Work Commission was presented with an application to approve the Austral Masonry Oakdale Enterprise Agreement 2021. The application was made by the employer, Austral Masonry (NSW) Pty Ltd, and opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around whether the agreement, which proposed certain changes to the employees' terms and conditions of employment, met the statutory requirements for approval under the Fair Work Act 2009.

The key legal issues that the Commission had to resolve were whether the agreement provided for fair and reasonable terms and conditions of employment, and whether the agreement had been made in accordance with the procedural requirements set out in the Act. Specifically, the Commission needed to assess whether the agreement contained provisions that were discriminatory, unjust or inequitable, or that unfairly disadvantaged employees. Furthermore, the Commission had to determine whether there was sufficient evidence that the agreement had been properly negotiated and whether the employer had taken reasonable steps to ensure that employees were aware of the agreement and had an opportunity to express their views on it.

The Commission found that the agreement was fair and reasonable and that it had been made in accordance with the statutory requirements. The Commission noted that the agreement contained provisions that were consistent with industry standards and that the employer had demonstrated a genuine attempt to negotiate with the union. The Commission also found that the employer had taken reasonable steps to inform employees about the agreement and to give them an opportunity to express their views. As such, the Commission approved the Austral Masonry Oakdale Enterprise Agreement 2021.

The Fair Work Commission orders that the Austral Masonry Oakdale Enterprise Agreement 2021 be approved as a registered agreement from the date of this decision. The agreement will now be registered and will apply to all employees who were party to the negotiations, as well as to new employees who are subsequently employed by the employer. The Commission's decision provides clarity on the requirements for approving enterprise agreements and will be of assistance to employers and unions in future negotiations.

Austral Masonry (NSW) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established