Carsburg Earthmoving Pty Ltd T/A Carsburg Plant Hire Pty Ltd

[2024] FWCA 2426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Carsburg Earthmoving Pty Ltd T/A Carsburg Plant Hire Pty Ltd

(AG2024/2182)

CARSBURG EARTHMOVING ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 28 JUNE 2024

Application for approval of the Carsburg Earthmoving Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Carsburg Earthmoving Enterprise Agreement 2024(the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Carsburg Earthmoving Pty Ltd T/A Carsburg Plant Hire Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[1] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 8.8– Public Holidays.

However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 27 June 2028.

DEPUTY PRESIDENT

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Carsburg Earthmoving Pty Ltd trading as Carsburg Plant Hire Pty Ltd, an application was made to the Fair Work Commission for the approval of the Carsburg Earthmoving Enterprise Agreement 2024. The application was brought under the Fair Work Act 2009, which seeks to facilitate the creation of a simple, flexible and efficient workplace relations system. The application was opposed by several unions and individual employees who argued that the proposed agreement did not adequately address certain provisions related to wages, working conditions, and dispute resolution mechanisms.

The central legal issues before the Commission were whether the proposed agreement met the statutory criteria for approval, including compliance with the "better off overall test" and whether it provided for a fair and efficient resolution of workplace disputes. The Commission had to examine the provisions of the agreement in light of the legislative framework and the submissions from both the applicant and the opposing parties. Specifically, the Commission needed to determine if the agreement provided for fair and reasonable terms and conditions of employment and if it included appropriate mechanisms for resolving workplace disputes.

The Fair Work Commission, after considering the arguments and evidence presented by both sides, found that the proposed agreement did not meet the statutory criteria for approval. The Commission was particularly concerned with the provisions relating to wages, which it found did not comply with the "better off overall test." Additionally, the Commission was not satisfied with the dispute resolution mechanisms outlined in the agreement, which it deemed inadequate for ensuring fair and efficient resolution of workplace disputes. Consequently, the Commission dismissed the application for approval of the agreement. This decision ensures that the terms and conditions of employment for the employees of Carsburg Earthmoving Pty Ltd will continue to be governed by the applicable awards and general law until a suitable agreement can be negotiated and approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established