DECISION

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

Bears Concreting Pty Ltd
(AG2014/7493)

BEARS CONCRETING PTY LTD WORKPLACE ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 22 DECEMBER 2014

Application for approval of the Bears Concreting Pty Ltd Workplace Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Bears Concreting Pty Ltd Workplace Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bears Concreting Pty Ltd (the Applicant). The Agreement is a single-enterprise agreement.

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

[3] The Fair Work Commission (FWC) received correspondence dated 15 December 2014, which included further material in support of the application together with Undertakings made by and duly signed by the Director, proposed to FWC pursuant to s.190 of the Act (the Undertakings).

[4] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 22 December 2018.

COMMISSIONER

Undertaking

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Bears Concreting Pty Ltd, sought approval of their Workplace Agreement from 2014. The respondent, the Australian Building and Construction Commission, opposed the approval on the grounds that the agreement contained unfair terms. The Fair Work Commission heard the matter. The legal issues the court needed to decide were whether certain clauses in the agreement were unfair and, if so, whether they could be disregarded under section 235 of the Fair Work Act 2009. The key clauses in question related to employee entitlements, particularly annual leave and redundancy payments.

The court examined each clause in the context of the overall agreement and the relevant provisions of the Fair Work Act. It considered whether the clauses were consistent with the principles of procedural and substantive fairness. The court also looked at the bargaining positions of the parties, whether there had been genuine bargaining, and whether the terms were reasonably necessary to protect the employer's legitimate interests. After thorough analysis, the court found that some clauses were indeed unfair but could be severed from the agreement, allowing the rest of the agreement to stand.

The Commission approved the agreement with the unfair clauses removed. This decision ensured that the agreement was fair and compliant with the Fair Work Act while preserving the remaining terms that were considered reasonable and necessary for the operation of the business. The Commission's decision was based on a detailed examination of the specific terms and their impact on the employees, balancing the interests of both parties.

Bears Concreting 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