Australian Portable Camps Services Pty Ltd

[2013] FWCA 2415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Portable Camps Services Pty Ltd
(AG2013/812)

AUSTRALIAN PORTABLE CAMPS SERVICES PTY LTD REGIONAL WORKS ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 19 APRIL 2013

Application for approval of the Australian Portable Camps Services Pty Ltd Regional Works Enterprise Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 5 April 2013 by Australian Portable Camps Services Pty Ltd for the approval of a single-enterprise agreement known as the Australian Portable Camps Services Pty Ltd Regional Works Enterprise Agreement 2013 (“the Agreement”).

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Australian Portable Camps Services Pty Ltd (APCC) applied to the Fair Work Commission (FWC) for approval of the Australian Portable Camps Services Pty Ltd Regional Works Enterprise Agreement 2013. The applicant, a company operating in the construction industry, sought approval of the agreement which was to cover its employees in the regional works division. The application was opposed by the Construction, Forestry, Mining and Energy Union (CFMEU) and the Building and Construction General On-Site Union (BCGOSU), both of which claimed the agreement failed to meet the requirements of the Fair Work Act 2009.

The FWC was required to determine whether the agreement was a "better off overall test" (BOOT) agreement and whether it met the procedural requirements for approval under the Fair Work Act. The unions argued the agreement did not provide employees with adequate protections and did not meet the procedural requirements for approval. APCC maintained that the agreement was fair and met all the requirements for approval.

The FWC found the agreement did not meet the BOOT as it did not provide employees with adequate protections, particularly in relation to the calculation of penalty rates for public holidays. The FWC also found that the agreement did not meet the procedural requirements for approval as it had not been negotiated in good faith. The FWC rejected the application for approval of the agreement.

The FWC made no orders as the application was dismissed. The agreement will not be approved and will not have effect. The employees will continue to be covered by the applicable awards and registered agreements until a new agreement is negotiated and approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established