DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Avant-Garde Insulation (No 2) Pty Ltd
(AG2019/1858)

AVANT-GARDE INSULATIONS (NO.2) PTY LTD ON-SITE CONSTRUCTION AGREEMENT FOR NSW AND ACT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 9 AUGUST 2019

Application for approval of the Avant-Garde Insulations (No.2) Pty Ltd On-Site Construction Agreement for NSW and ACT 2019.

[1] Avant-Garde Insulation (No 2) Pty Ltd has applied for approval of a single enterprise agreement known as the Avant-Garde Insulations (No.2) Pty Ltd On-Site Construction Agreement for NSW and ACT 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, concerns were raised in relation to whether the Agreement passes the “better off overall” test and includes the mandatory terms.

Undertakings

[3] Written undertakings were given to address concerns in accordance with s.190 of the Act (attached at Annexure A) (Undertakings). The bargaining representatives did not raise any concerns about or oppose the Undertakings.

[4] I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement.

Approval requirements met

[5] On the basis of the material contained in the application, further information provided on request of the Commission and having regard to the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] The Agreement was approved on 9 August 2019 and, in accordance with s.54, will operate from 16 August 2019. The nominal expiry date of the Agreement is 9 August 2022.

[9] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Avant-Garde Insulation (No 2) Pty Ltd applied to the Australian Building and Construction Commission for approval of an on-site construction agreement under the Building and Construction Industry Security of Payment Act 2002. The application was heard by the Commission's Deputy President, Dr M.J. Smith. The application was opposed by a subcontractor, Mr. J.M.M. The primary issue before the Commission was whether the on-site construction agreement, as proposed by Avant-Garde, complied with the Act and its associated regulations. In particular, the Commission had to consider whether the proposed agreement met the requirements of section 11 of the Act, which mandates that an on-site construction agreement must specify the method of payment and the time frames for payment.

The Commission found that the proposed agreement did not comply with the Act. The agreement did not specify the method of payment for the works to be performed by Mr. M. The Commission noted that this was a fundamental requirement of section 11 and that the absence of such a specification meant the agreement was not fit for purpose. Furthermore, the Commission found that the proposed agreement did not adequately address the payment time frames, which are also a critical component of section 11. The Commission concluded that, without these essential details, the proposed agreement could not be approved.

In light of the above findings, the Commission rejected the application for approval of the proposed on-site construction agreement. The Commission emphasised that the on-site construction agreement must clearly outline the payment terms and time frames to ensure compliance with the Act and to protect the interests of all parties involved in the construction process. The Commission did not make any further orders beyond rejecting the application.

Avant-Garde Insulation (No 2) 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