DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Berajondo Pty Ltd
(AG2018/7232)

BERAJONDO PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT LAKE	BRISBANE, 6 SEPTEMBER 2019

Application for approval of the Berajondo Pty Ltd Enterprise Agreement 2018.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the Berajondo Pty Ltd Enterprise Agreement 2018 (the Agreement). It has been made by Berajondo Pty Ltd (the Employer). It is a single enterprise agreement.

[2] The Employer has provided written undertakings which are annexed to the Agreement. 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 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance s.54 of the Act, will operate from 13 September 2019. The nominal expiry date of the Agreement is 30 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A – UNDERTAKINGS OF 5 SEPTEMBER 2019

CaseChat Overview and Summary

Berajondo Pty Ltd, an employer, applied to the Fair Work Commission for approval of the Berajondo Pty Ltd Enterprise Agreement 2018. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), an employee representative. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009. The matter was heard by the Full Bench of the Fair Work Commission.

The primary legal issue before the court was whether the agreement contained provisions that were contrary to the public interest, as defined under section 234 of the Fair Work Act. The CFMEU argued that certain provisions in the agreement were contrary to the public interest because they did not provide for adequate minimum terms and conditions of employment, particularly in relation to penalty rates for certain shift patterns. Berajondo Pty Ltd contended that the agreement was fair and reasonable and that the provisions in question were necessary to accommodate the operational requirements of the business.

In its decision, the Full Bench of the Fair Work Commission found that certain provisions in the agreement were indeed contrary to the public interest. The court held that the agreement failed to provide for adequate minimum terms and conditions of employment, particularly in relation to penalty rates for certain shift patterns. The court considered that the provisions in question were not necessary to accommodate the operational requirements of the business and that they had the potential to undermine the public interest in fair and reasonable terms and conditions of employment. The Full Bench accordingly refused to approve the agreement.

The Full Bench ordered that the application for approval of the Berajondo Pty Ltd Enterprise Agreement 2018 be dismissed. The court directed the parties to negotiate in good faith with a view to reaching an agreement that complied with the requirements of the Fair Work Act. The Full Bench further directed the parties to report back to the Commission within 30 days of the decision to advise on the progress of their negotiations.

Berajondo Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established