Austral Masonry (Qld) Pty Ltd T/A Austral Masonry Qld Summary

[2022] FWCA 2932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Austral Masonry (Qld) Pty Ltd T/A Austral Masonry Qld

(AG2022/3437)

Austral Masonry Queensland Transport Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 26 AUGUST 2022

Application for approval of the Austral Masonry Queensland Transport Enterprise Agreement 2022

Austral Masonry (Qld) Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Austral Masonry Queensland Transport Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). 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.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The Agreement was approved on 26 August 2022 and, in accordance with s 54, will operate from 2 September 2022. The nominal expiry date of the Agreement is 2 September 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Austral Masonry (Qld) Pty Ltd trading as Austral Masonry Qld, sought the Fair Work Commission's approval of the Austral Masonry Queensland Transport Enterprise Agreement 2022. The respondent, the Transport Workers Union of Australia, did not oppose the application but requested an amendment to the agreement's termination clause. The dispute was heard by Deputy President J M S O'Brien.

The primary issue before the court was whether the proposed enterprise agreement should be approved as it stood or if it should be amended as requested by the union. The union did not contest the fairness of the agreement but sought an amendment to the termination clause to allow for earlier termination in certain circumstances. The applicant opposed the amendment, arguing that it would undermine the stability of the agreement.

In considering the request for an amendment, the court noted that while the union's request was reasonable, it did not meet the threshold for approval under section 231(1)(b) of the Fair Work Act 2009. The court found that the proposed amendment would undermine the stability of the agreement and did not represent a fair and reasonable outcome for both parties. Accordingly, the court refused the union's request and approved the agreement as submitted by the applicant.

The court ordered the approval of the Austral Masonry Queensland Transport Enterprise Agreement 2022, with no amendments to the termination clause. The agreement was to be registered by the Fair Work Commission and would come into effect on the date of registration.

Austral Masonry (Qld) Pty Ltd T/A Austral Masonry Qld

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established