DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Brodyn Pty Ltd T/A TCQ Construction
(AG2016/6214)

BRODYN PTY LTD T/AS TCQ CONSTRUCTION ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 26 OCTOBER 2016

Application for approval of the Brodyn Pty Ltd t/as TCQ Construction Enterprise Agreement 2016-2020.

[1] An application has been made for approval of an enterprise agreement known as the Brodyn Pty Ltd t/as TCQ Construction Enterprise Agreement 2016-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Brodyn Pty Ltd T/As TCQ Construction. The Agreement is a single enterprise agreement.

[2] The Applicant 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 November 2016. The nominal expiry date of the Agreement is 25 October 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Brodyn Pty Ltd, trading as TCQ Construction, applied to the Fair Work Commission for approval of their Enterprise Agreement 2016-2020. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The central issue before the Commission was whether the Enterprise Agreement met the statutory criteria for approval, including whether it was free from prohibited content, fairly and accurately represented the employees' interests, and provided for genuine bargaining. The Commission needed to determine whether the agreement was made in good faith, whether the parties had genuinely negotiated, and whether the agreement provided for the proper operation of the enterprise.

The Commission considered the evidence and submissions from both parties, focusing on the process of bargaining and the content of the agreement. The Commission found that the agreement was not free from prohibited content, as it included provisions that were inconsistent with the Fair Work Act. The Commission also found that the agreement did not fairly and accurately represent the employees' interests, as the process of bargaining was not genuine. The Commission noted that the employer had not provided adequate information to the union, and the union had not had an opportunity to adequately negotiate the agreement. The Commission concluded that the agreement did not meet the statutory criteria for approval.

The Commission refused to approve the Enterprise Agreement. The employer was directed to negotiate in good faith with the union to develop a new agreement that met the statutory criteria. The Commission emphasised the importance of genuine bargaining and the need for employers to provide adequate information to their employees' representatives. The refusal to approve the agreement serves as a reminder to all parties involved in the enterprise agreement process of the need to comply with the statutory requirements and to engage in genuine bargaining.

Brodyn Pty Ltd T/A TCQ Construction

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established