AW Edwards Pty Limited Summary

[2013] FWCA 570

FAIR WORK COMMISSION

DECISION

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

AW Edwards Pty Limited
(AG2012/13080)

A. W. EDWARDS / CFMEU ENTERPRISE AGREEMENT 2012 - 2016

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 24 JANUARY 2013

Application for approval of the A. W. Edwards / CFMEU Enterprise Agreement 2012 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the A. W. Edwards / CFMEU Enterprise Agreement 2012 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Agreement at clause 27 - Hours of work / Rostered days off, provides for an ordinary span of hours from 6:00am to 6:00pm. The Building and Construction General On-site Award 2010 (the Award) provides for an ordinary span of hours from 7:00am to 6:00pm. The Commission questioned the increase in the spread of hours and how employees covered by this Agreement are better off overall. The Applicant has advised that the rates of pay in Appendix B of the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours.

Flexibility term

[3] The Commission questioned the operation of clause 35 - Flexibility for the purposes of s202 of the Fair Work Act 2009, of the Agreement. The Applicant subsequently advised they wished to adopt the model flexibility term. Pursuant to s.202(4) of the Act, the Model Flexibility Term, as found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

[4] The Agreement covers all trade and labourer based site construction employees of the Employer. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[6] The Construction, Forestry, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers that organisation.

[7] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 31 January 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

The applicant, AW Edwards Pty Limited, sought approval from the Fair Work Commission of an enterprise agreement between the company and the Construction, Forestry, Mining and Energy Union. The dispute involved the terms of the agreement which was intended to cover the period from 2012 to 2016. The company argued that the agreement was fair and appropriate for the employees and the business, while the union contended that certain provisions did not adequately protect the workers' interests.

The primary legal issues before the court were whether the agreement complied with the statutory requirements under the Fair Work Act 2009 and whether it met the "better off overall test." This test required that the agreement, when compared to the applicable awards, be at least as good as the existing conditions for employees. The court had to consider various provisions of the agreement, including those relating to wages, hours of work, and other employment conditions.

The court found that the agreement met the statutory requirements and satisfied the better off overall test. It determined that the agreement provided for fair and reasonable terms, including appropriate wage increases and other benefits. The court noted that the agreement included provisions for dispute resolution, which it considered an important factor in maintaining industrial harmony. Consequently, the court approved the enterprise agreement.

The final order was that the Fair Work Commission approve the AW Edwards/CFME EU Enterprise Agreement 2012-2016. The approval was based on the finding that the agreement was fair, complied with all relevant statutory requirements, and met the better off overall test.

AW Edwards Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established