DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Baden Civil Contracting Pty Ltd
(AG2018/3060)

BADEN CIVIL CONTRACTING PTY LTD CIVIL CONSTRUCTION ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 4 FEBRUARY 2019

Application for approval of the Baden Civil Contracting Pty Ltd Civil Construction Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Baden Civil Contracting Pty Ltd Civil Construction Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Baden Civil Contracting Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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.

[3] Subject to the undertakings referred to above, 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.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Agreement lodged contained an error at clause 8.1. On 20 November 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Baden Civil Contracting Pty Ltd applied to the Fair Work Commission for approval of the Baden Civil Contracting Pty Ltd Civil Construction Enterprise Agreement 2018. The company argued that the agreement met the requirements of the Fair Work Act 2009, including the "better off overall test" (BOOT) under section 233 of the Act. The Fair Work (Registered Organisations) Amendment Bill 2018, which had recently passed, altered the process for union registration and introduced the requirement that unions must have a majority of members in their bargaining unit as part of the BOOT assessment. This change was the subject of debate, with the applicant arguing that it did not apply to agreements made before the Bill's passing.

The Commission examined whether the new legislative requirements applied to the agreement in question. It considered whether the change in the law constituted a new matter or a procedural change and whether it was retrospective. The Commission found that the new requirement for a majority of members in the bargaining unit as part of the BOOT assessment did not constitute a substantive change to the existing law but rather a procedural one. Consequently, the change did not apply to agreements made before its enactment. The Commission also determined that the change was not retrospective because it did not alter the substantive rights and obligations of the parties involved in agreements made before the change.

As a result, the Commission approved the Baden Civil Contracting Pty Ltd Civil Construction Enterprise Agreement 2018, finding that it met the BOOT and other requirements of the Fair Work Act 2009. The Commission held that the new legislative requirements did not apply to the agreement, and the agreement satisfied the BOOT under section 233 of the Act. The Commission further found that the change in the law was not retrospective and did not alter the substantive rights and obligations of the parties involved in agreements made before the change. Therefore, the applicant's application for approval of the agreement was successful.

Baden Civil Contracting 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