Concrete Constructions (WA) Pty Ltd
[2017] FWCA 5631
•30 OCTOBER 2017
| [2017] FWCA 5631 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Concrete Constructions (WA) Pty Ltd
(AG2017/687)
CONCRETE CONSTRUCTIONS ENTERPRISE AGREEMENT 2017
| Building, metal and civil construction industries | |
| COMMISSIONER SIMPSON | BRISBANE, 30 OCTOBER 2017 |
Application for approval of the Concrete Constructions Enterprise Agreement 2017.
On 3 March 2017 Concrete Constructions (WA) Pty Ltd (Concrete Constructions) applied for approval of an enterprise agreement described as the Concrete Constructions Enterprise Agreement 2017 (the Agreement).
The Construction, Forestry, Mining and Energy Union (CFMEU), being a bargaining representative for the Agreement has given notice under s.183 of the Act that it elected to be covered by the Agreement. In accordance with s.201(2), I note that the Agreement covers the CFMEU.
The CFMEU initially opposed the approval of the Agreement primarily on the basis that it did not satisfy the better off overall test (BOOT) as set out in s.186(2)(d) of the Act and that the remuneration provided for under the proposed Agreement was less than that provided for in the Building and Construction General On-Site Award 2010. The CFMEU also held a belief that no employees in the construction industry were actually employed by Concrete Constructions. Concrete Constructions proposed undertakings to address the issues raised by the Union, and an approval decision was issued by Commissioner Gregory. That decision was quashed by a Full Bench decision in Construction, Forestry, Mining and Energy Union v Concrete Constructions (WA) Pty Ltd[1] and the matter has been remitted to me for re-determination.
Legislative Framework
Section 190 of the Act states:
“190 FWC may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWC must seek views of bargaining representatives
(4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.
…”
Consideration
Following the decision of the Full Bench, I listed the matter for hearing on 5 September 2017. Revised undertakings were proposed by Concrete Constructions and provided to the CFMEU, and a further hearing before me was listed on 16 October 2017. The CFMEU requested not to appear as they elected not to make any submissions on the proposed undertakings. The following day, Concrete Constructions provided a signed consolidated undertaking in accordance with r 2.07 of the Fair Work Regulations 2009.
Pursuant to s.190 of the Act, Concrete Construction’s undertakings are accepted. In accordance with s.201(3) of the Act I note that a copy of the undertakings is attached to the Agreement and forms part of the Agreement.
I am satisfied that each of the requirements of ss.186, 187 and 188 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 6 November 2017. The nominal expiry date of the Agreement is 30 October 2021.
COMMISSIONER
[1] [2017] FWCFB 3912.
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