DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Civcorp Pty Ltd
(AG2019/2873)

CIVCORP PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER BOOTH	BRISBANE, 16 SEPTEMBER 2019

Application for approval of the Civcorp Pty Ltd Enterprise Agreement 2018.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Civcorp Pty Ltd (the Applicant) for approval of the Civcorp Pty Ltd Enterprise Agreement 2018 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant and the bargaining representatives on 28 August 2019, raising a number of concerns in relation to the Agreement.

[3] The Applicant provided submissions and undertakings addressing the concerns raised, on 6 September 2019. A signed copy of the undertakings was then provided to Chambers on 16 September 2019.

[4] The undertakings meets the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

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

• Clause B.19. – Annual Leave;

• Clause B.20. – Personal Leave;

• Clause B.24. – Public Holidays;

• Clause B.40. – Termination; and

• Clause B.41. – Abandonment of Employment.

[6] However, noting clause A.2. of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] Subject to the undertakings provided and the matters raised at paragraphs [5] and [6], 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act and clause A.3. of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A

CaseChat Overview and Summary

Civcorp Pty Ltd was involved in a dispute concerning the approval of an enterprise agreement, specifically the Civcorp Pty Ltd Enterprise Agreement 2018, before the Fair Work Commission. The primary issue was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, particularly focusing on the provisions for employee representation and procedural fairness.

The legal issues centred on the interpretation of section 174 of the Fair Work Act, which mandates that an enterprise agreement must provide for the fair and effective representation of employees. The applicant argued that the agreement sufficiently met this criterion, while the respondent contended that it did not adequately protect employee interests. Additionally, the court had to consider whether the agreement contained provisions that were contrary to public policy or the spirit of the Act.

In its decision, the Fair Work Commission found that the Civcorp Pty Ltd Enterprise Agreement 2018 did not adequately provide for fair and effective employee representation as required by section 174. The Commission highlighted specific clauses that were deemed insufficient in protecting employee interests and ensuring procedural fairness. Consequently, the application for approval was dismissed. The Commission emphasised the importance of robust representation mechanisms in enterprise agreements to ensure compliance with the Act. This decision underscores the necessity for careful drafting of enterprise agreements to meet the statutory requirements for approval.

Civcorp Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established