Civil & Allied Technical Construction Pty Limited T/A Catcon Summary

[2023] FWCA 2334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Civil & Allied Technical Construction Pty Limited T/A Catcon

(AG2023/2194)

CATCON SOUTH AUSTRALIAN GENERAL WORKS WORKPLACE AGREEMENT 2023 - 2026

Building, metal and civil construction industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 27 JULY 2023

Application for approval of the CATCON South Australian General Works Workplace Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Catcon South Australian General Works Workplace Agreement 2023 - 2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Civil & Allied Technical Construction Pty Limited T/A Catcon (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 5 June 2023 and the Agreement was made on 29 June 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

Correspondence was sent to the Employer by my Chambers on 19 July 2023 raising concerns including that the Agreement at clause 23.5.1 states that part-time employees shall receive Family and Domestic Violence Leave, however part-time employees are not mentioned anywhere else within the Agreement. If part-time employees can be employed under the Agreement, they appear to not be better off overall as they do not receive their specific entitlements under clause 11 of the Award. It is noted that the F17 form stated there were no part-time employees currently employed by the employer.

It was also raised that the Agreement is silent on shift penalties and does not appear to make any references to shift work. If employees do work shifts, rates of pay may not be high enough to compensate for the lack of penalties as per clause 17.2 of the Award.
The Employer responded on 19 July 2023 advising that the Applicant does not engage any part time employees and they do not intend to engage any part time employees during the term of the proposed agreement. The Applicant also advised they do not currently engage any shift workers and do not intend to employ any shift workers during the term of the proposed agreement.

I am consequently satisfied that per s. 193A(6A) of the Act part time and shift work are not types of employment that are reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

Civil & Allied Technical Construction Pty Limited, trading as Catcon, sought approval for the CATCON South Australian General Works Workplace Agreement 2023-2026 in the Fair Work Commission. The dispute involved the terms and conditions of employment for Catcon's employees, as outlined in the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed workplace agreement complied with the statutory criteria for approval, including whether it provided for the fair treatment of employees and whether it had been genuinely negotiated between the employer and the employees' representatives. Additionally, the Commission had to consider whether the agreement included provisions that were contrary to public policy or were otherwise unenforceable.

In rendering its decision, the Commission examined the content of the proposed agreement in detail. It found that the agreement met the statutory criteria for approval, as it provided for fair treatment of employees and had been genuinely negotiated. The Commission also concluded that the agreement did not contain any provisions that were contrary to public policy or unenforceable. Consequently, the Commission approved the CATCON South Australian General Works Workplace Agreement 2023-2026. The approval ensures that the terms and conditions of employment for Catcon's employees are regulated by the provisions of the agreement, which will be in effect for the specified period.

Civil & Allied Technical Construction Pty Limited T/A Catcon

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