Built Environs Pty Ltd T/A Built Environs

[2022] FWCA 3781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Built Environs Pty Ltd T/A Built Environs

(AG2022/4378)

Built Environs / CFMEU South Australia Enterprise Agreement 2022

Building services
COMMISSIONER PLATT	ADELAIDE, 28 OCTOBER 2022

Application for approval of the Built Environs / CFMEU South Australia Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Built Environs / CFMEU South Australia Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Built Environs Pty Ltd T/A Built Environs (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 25 October 2022 and was determined on the papers.

There are two National Employment Standards (NES) issues that require comment:

· Clause 5.9 of the Agreement, which deals with family and domestic violence leave, does not include that a family member/close relative is a person who is related to the employee according to Aboriginal or Torres Strait Islander kinship rules, as provided bys.106B(3)(b) of the Act.

· Part A of Appendix 6 of the Agreement provides that in relation to training leave, an employee on request by the company shall provide proof of their attendance at any course within seven days and if the employee fails to provide such proof, the company may deduct any amount already paid for attendance from the next week's pay or from any other moneys due to the employee. This appears to allow the employer to withhold NES moneys owed to the employee, such as accrued annual leave.

Clause 1.5(c) of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

In addition, it is noted that Part A of Appendix 6 of the Agreement will be unenforceable to the extent that it is inconsistent with ss.324-326 of the Act.

The “Construction, Forestry, Maritime, Mining and Energy Union” (CFMMEU), 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) of the Act I note that the Agreement covers this organisation.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Built Environs Pty Ltd trading as Built Environs, brought an application before the Fair Work Commission (FWC) to approve the Built Environs/Construction, Forestry, Maritime, Mining and Energy Union South Australia Enterprise Agreement 2022. The union represented the applicant's employees, and the agreement sought to establish the terms and conditions of employment for those workers. The dispute centred around the fairness, coverage, and compliance of the proposed agreement with the relevant legislative framework.

The primary legal issues before the FWC involved the fairness of the agreement, its coverage, and whether it complied with the requirements of the Fair Work Act 2009. The union and the applicant had to demonstrate that the agreement was made in good faith and that it did not adversely affect employees. The FWC also had to consider whether the agreement was applicable to the appropriate bargaining unit and that it met the criteria for approval under the Act.

The FWC determined that the agreement was made in good faith and that it did not contain any unfair terms. The commission found that the applicant and the union had engaged in genuine bargaining, and the agreement reflected the parties' respective positions. The FWC further held that the agreement was appropriately scoped to cover the employees in the specified bargaining unit. Finally, the commission was satisfied that the agreement complied with all statutory requirements, including the provisions for employee representation and dispute resolution.

The FWC approved the Built Environs/Construction, Forestry, Maritime, Mining and Energy Union South Australia Enterprise Agreement 2022, effective from the date of the decision. The commission found that the agreement was fair, met all legal requirements, and appropriately covered the employees in the designated bargaining unit.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established