DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cape Australia Onshore Pty Ltd T/A Cape Australia
(AG2018/3530)

CAPE AUSTRALIA PAINTING AND BLASTING ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	SYDNEY, 30 OCTOBER 2018

Application for approval of the Cape Australia Painting and Blasting Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Cape Australia Painting and Blasting Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cape Australia Onshore Pty Ltd T/A Cape Australia. The agreement is a single enterprise agreement.

[2] The Employer 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, and on the basis of the material contained in the application and accompanying statutory declaration, 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 Construction, Forestry, Maritime, Mining and Energy Union 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 30 October 2018 and, in accordance with s.54, will operate from 6 November 2018. The nominal expiry date of the Agreement is 1 October 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Cape Australia Onshore Pty Ltd, trading as Cape Australia, sought approval of the Cape Australia Painting and Blasting Enterprise Agreement 2017. The application was made under section 235 of the Fair Work Act 2009. The dispute centred around the fairness of the terms and conditions outlined in the agreement, specifically whether the provisions met the requirements for "better off overall" and "no detriment" as mandated by the legislation.

The primary legal issues before the Commission were whether the proposed agreement complied with the statutory provisions regarding its approval, including the requirement that it must not provide for terms and conditions that are less favourable than the applicable award or safety net award. The Commission also had to determine whether the agreement met the "better off overall" test and did not result in any detriment to the employees covered by the agreement.

The Fair Work Commission examined the terms and conditions of the agreement against the relevant award provisions and considered submissions from both the employer and the employees. The Commission found that the agreement provided for terms and conditions that were at least as favourable as those set out in the applicable award, and that employees would be better off overall with the proposed agreement. The Commission concluded that the agreement did not result in any detriment to the employees and was thus fair and reasonable.

The Fair Work Commission approved the Cape Australia Painting and Blasting Enterprise Agreement 2017, determining that it met the legislative requirements for approval. The agreement was deemed to be fair and reasonable, providing terms and conditions that were not less favourable than the applicable award and meeting the "better off overall" and "no detriment" tests.

Cape Australia Onshore Pty Ltd T/A Cape Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established