Built Pty Ltd

[2022] FWCA 1836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Built Pty Ltd

(AG2022/1580)

Built Pty Ltd / CFMEU South Australia Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 6 JUNE 2022

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

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

The matter was allocated to my Chambers on 30 May 2022.

On 2 June 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement.

Part A (d) (i) and Part B (r) of the Agreement state that if an employee fails to provide proof of absence, the employer may deduct any amount of already paid for attendance from the next week’s pay or from any other money due to the employee. Clause 2.8 (i)(D) of the Agreement states the employer may deduct the cost of the forward journey fare from an employee who terminates or discontinues employment within two weeks of commencing on the job and who does not forthwith return to the employee's place of engagement. Sections 324-326 of the Act deal with permitted deductions and when terms of an agreement which allow for unreasonable deductions may be unenforceable. To the extent that the above clauses are inconsistent with ss.324-326 of the Act, they will have no effect.

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 and 188 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 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Built Pty Ltd, an employer, sought approval of an enterprise agreement with the CFMEU South Australia. The application was brought before the Fair Work Commission (FWC), which was tasked with determining whether the agreement met the criteria for approval. The dispute centred on whether the agreement adhered to the requirements of the Fair Work Act 2009 and whether it was fair and reasonable in terms of the process by which it was negotiated.

The court examined several legal issues, including whether the agreement was genuinely negotiated, whether it included the essential terms, and whether it was free from prohibited content. Additionally, the court considered whether the agreement was in compliance with relevant national employment standards and if it met the 'better off overall test'. This test required that the agreement must be at least as good as the applicable awards or other relevant instruments.

In reaching its decision, the FWC determined that the agreement was genuinely negotiated and contained all the essential terms. The court found that the agreement was free from prohibited content and that it complied with the relevant national employment standards. The FWC further found that the agreement met the 'better off overall test'. Consequently, the court approved the Built Pty Ltd / CFMEU South Australia Enterprise Agreement 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established