Broad Construction Services (Qld) Pty Ltd T/A Broad Constructions

[2013] FWCA 4307

FAIR WORK COMMISSION

DECISION

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

Broad Construction Services (Qld) Pty Ltd T/A Broad Constructions
(AG2013/1635)

BROAD CONSTRUCTION SERVICES (QLD) PTY LTD BUILDING AND CONSTRUCTION ENTERPRISE AGREEMENT (QLD & NT) 2012 - 2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 3 JULY 2013

Application for approval of the Broad Construction Services (Qld) Pty Ltd Building and Construction Enterprise Agreement (QLD & NT) 2012 - 2016.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 25 June 2013 by Broad Construction Services (Qld) Pty Ltd T/A Broad Constructions for the approval of a single-enterprise agreement known as the Broad Construction Services (Qld) Pty Ltd Building and Construction Enterprise Agreement (QLD & NT) 2012 - 2016 (“the Agreement”).

[2] In relation to clause 8.10 of the Agreement (“visa compliance”) which refers to apparent obligations upon the employer to do certain things where “temporary foreign labour” is engaged, I note that a recent decision of the Fair Work Commission 1 has found that a clause in such terms as clause 8.10 of the Agreement is not permitted content, and consequently, cannot impose the obligations upon the employer it seeks to impose.

[3] 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.

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

[5] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

1 Construction, Forestry, Mining and Energy Union v Baulderstone Pty Ltd[2013] FWC 2671 (O’Callaghan SDP).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Broad Construction Services (Qld) Pty Ltd, trading as Broad Constructions, applied for the approval of the Broad Construction Services (Qld) Pty Ltd Building and Construction Enterprise Agreement (QLD & NT) 2012 - 2016. The application was heard by the Fair Work Commission, and the matter was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the terms and conditions of the proposed enterprise agreement, particularly concerning the classification and remuneration of workers, and the implications of these terms on the workers' entitlements and the overall fairness of the agreement.

The legal issues before the Commission involved determining whether the proposed agreement was genuinely negotiated and whether it provided for fair and reasonable terms and conditions. The Commission had to consider whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly regarding the process of bargaining, the terms of the agreement, and its overall fairness. Additionally, the Commission needed to assess the implications of the agreement on the workers' entitlements, including minimum rates of pay, classification of jobs, and other conditions of employment.

In reaching its decision, the Fair Work Commission examined the process of negotiation and the substance of the proposed agreement. The Commission noted that the agreement had been genuinely negotiated between the employer and the union, and that the union had represented the workers in the negotiation process. The Commission also found that the agreement provided for fair and reasonable terms and conditions, taking into account the economic circumstances of the parties and the broader industry context. The Commission was satisfied that the agreement did not disadvantage the workers and that it provided for appropriate classifications and remuneration. Based on this analysis, the Commission approved the proposed enterprise agreement.

The Fair Work Commission approved the Broad Construction Services (Qld) Pty Ltd Building and Construction Enterprise Agreement (QLD & NT) 2012 - 2016, effective from 1 July 2012. The approval was based on the finding that the agreement had been genuinely negotiated and that it provided for fair and reasonable terms and conditions. The decision underscores the importance of ensuring that enterprise agreements are negotiated in good faith and that they provide for appropriate classifications and remuneration for workers, while also taking into account the economic circumstances of the parties and the broader industry context.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established