DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Industry Group T/A Ai Group
(AG2019/205)

SOUTHERN REGION ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 28 MAY 2019

Application for approval of the Southern Region Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Southern Region Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Australian Industry Group T/A Ai Group. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 3 May 2019.

[3] On 16 May 2019 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) provided a submission which, whilst acknowledging that it was not a bargaining agent, sought to make submissions as to the approval of the Agreement including pre-approval and BOOT issues. The CFMMEU is not a party to these proceedings. The CFMMEU invited me to exercise my discretion under s.590 of the Act to receive a submission from them. I declined to do so as such a course would be inconsistent with s.176 of the Act. I advised the CFMMEU that I would exercise my discretion to receive their submission so as to better inform myself as to whether the relevant tests had been met. Their submission covered a number of the issues including the operation of the redundancy provisions, annual leave, the BOOT test and impact of the rates of pay and allowances, hours of work and shift work provisions, overtime and annual leave.

[4] On 14 and 27 May 2019, I conducted telephone conferences with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[5] The Applicant has submitted an undertaking in the required form dated 28 May 2019. The undertaking deals with the following topics:

• CPB Contractors Pty Ltd (CPB) will comply with clause 14.3 of the Building and Construction General On-site Award 2010 (the Award).

• In the event that clause 17 of the Award provides a more beneficial entitlement for an employee than clause 3.4 of the Agreement, CPB will comply with clause 17 of the Award in respect of that employee.

• Despite clause 3.7.4 of the Agreement, an employee will be entitled to notice of termination in accordance with the National Employment Standards (NES) in the case of abandonment of employment.

• Clause 6.1.2 of the Agreement will be amended to include the additional sentence at the end of the clause:

“Employees who meet the description contained in this clause 6.1.2 are shift workers for the purposes of the National Employment Standards.”

• CPB undertakes to comply with clauses 15.3(b) and 15.3(c) of the Award.

• CPB undertakes that apprentices employed under the Agreement who perform overtime or shift work (or both) will be eligible to receive the applicable penalties and allowances payable to employees who perform such work in accordance with the terms of the Agreement.

• CPB undertakes to comply with clause 15.6 of the Award.

• CPB undertakes that if employees are ever required to work in a place where fumes of sulphur or other acid or offensive fumes are present, CPB will pay employees a fumes allowance at a rate determined in accordance with the Award.

• CPB undertakes to comply with clause 22.4(b) of the Award.

• CPB undertakes that the definition of “day shift”, “afternoon shift” and “night shift” as contained in the Award shall be applied in the Agreement.

[6] No bargaining representatives were appointed.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 28 May 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved the Australian Industry Group, trading as Ai Group, and its employees, represented by the Australian Manufacturing Workers' Union. The dispute centred around the approval of the Southern Region Enterprise Agreement 2018. The Commission was tasked with determining whether the agreement met the requirements under the Fair Work Act 2009 for it to be certified and applicable to the employees of Ai Group.

The key legal issues before the Commission included whether the agreement had been genuinely negotiated between the parties, if it contained all the mandatory terms and conditions as prescribed by the Act, and if it ensured fair and reasonable treatment of the employees. Furthermore, the Commission needed to assess if the agreement complied with the provisions of the Fair Work (Registered Organisations) Act 2009 and the Fair Work Regulations 2009.

In its decision, the Fair Work Commission found that the agreement had been genuinely negotiated and contained all the necessary mandatory terms and conditions. The Commission noted that the agreement provided for fair and reasonable treatment of the employees, including provisions for wages, hours of work, leave, and other employment conditions. The Commission also determined that the agreement complied with the relevant Acts and Regulations. Consequently, the Commission approved the Southern Region Enterprise Agreement 2018, finding it to be a genuine enterprise agreement under the Fair Work Act 2009.

The Fair Work Commission certified the Southern Region Enterprise Agreement 2018, effective from the date of the decision. The agreement was to apply to the employees of Ai Group within the specified southern region, providing them with the terms and conditions set out in the approved agreement.

Australian Industry Group T/A Ai Group

DECISION

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established