DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Barnwell Cambridge Pty Ltd
(AG2021/6496)

BARNWELL CAMBRIDGE PTY LTD & ETU SYDNEY CONSTRUCTION ENTERPRISE AGREEMENT 2021

Electrical contracting industry
COMMISSIONER JOHNS	SYDNEY, 10 AUGUST 2021

Application for approval of the Barnwell Cambridge Pty Ltd & ETU Sydney Construction Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Barnwell Cambridge Pty Ltd & ETU Sydney Construction Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Barnwell Cambridge Pty Ltd. The Agreement is a single enterprise agreement.

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

[3] 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.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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 the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 August 2021. The nominal expiry date of the Agreement is 31 October 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Barnwell Cambridge Pty Ltd applied for approval of the Barnwell Cambridge Pty Ltd and ETU Sydney Construction Enterprise Agreement 2021. The ETU Sydney Construction argued that the proposed agreement did not provide adequate protections for workers and did not meet the requirements of the Fair Work Act 2009.

The central legal issue was whether the proposed enterprise agreement complied with the statutory provisions of the Fair Work Act, particularly in relation to the protections it afforded to employees. This included assessing whether the agreement met the "better off overall test" which requires that employees be no worse off financially than under the applicable award or registered agreement, and whether the agreement contained minimum terms and conditions that aligned with the Act's objectives.

The Fair Work Commission found that while the proposed agreement contained many positive provisions, it did not adequately protect workers in certain areas, particularly regarding entitlements to paid leave and redundancy payments. The Commission concluded that the agreement failed the better off overall test and did not meet the minimum terms and conditions required by the Act. As a result, the Commission did not approve the proposed agreement.

The Commission emphasised the importance of ensuring that enterprise agreements provide fair and adequate protections for employees. It noted that while the agreement contained some beneficial provisions, it was ultimately insufficient in key areas. The Commission's decision highlights the need for careful scrutiny of enterprise agreements to ensure compliance with the statutory framework and the protection of workers' rights.

Barnwell Cambridge 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