DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Constructability WA Pty Ltd T/A Nino Construction
(AG2020/3432)

CONSTRUCTABILITY WA PTY LTD ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 11 DECEMBER 2020

Application for approval of the Constructability WA Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Constructability WA Pty Ltd Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Constructability WA Pty Ltd T/A Nino Construction. 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, 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] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 9.3 – Hours of Work;

• Clause 17.4 – Annual Leave;

• Clause 18.3 – Personal/Carer’s Leave;

• Clause 26.5 – Termination of Employment; and

• Clause 26.8 – Return of Property

However, noting clause 4.2 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.

[5] The Agreement lodged contained reference errors on page 9. On 8 December 2020, the Applicant filed an amended page of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 December 2020. The nominal expiry date of the Agreement is 10 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of the Constructability WA Pty Ltd Enterprise Agreement 2020, with the company operating under the trade name Nino Construction. The dispute arose from negotiations between the employer and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which sought to establish terms and conditions of employment for the workers involved. The Commission was tasked with determining whether the proposed agreement met the necessary legal standards for approval under the Fair Work Act 2009.

The primary legal issues before the Commission included whether the agreement provided for terms and conditions that were no worse off financially or in terms of overall conditions than the applicable awards or safety nets, and whether it included appropriate mechanisms for resolving disputes. The Commission also needed to consider whether the agreement complied with the requirements for simplification and transparency as mandated by the Fair Work Act. Additionally, the Commission had to assess whether the agreement adequately represented the interests of the employees involved.

In examining the application, the Commission found that the proposed agreement provided terms and conditions that were not worse off financially or in terms of overall conditions than the applicable awards or safety nets. The Commission also noted that the agreement contained appropriate mechanisms for resolving disputes, including provisions for conciliation and arbitration. Furthermore, the agreement was deemed to be compliant with the requirements for simplification and transparency, and it was found to adequately represent the interests of the employees. Consequently, the Commission approved the application, finding that the agreement met all necessary legal standards for approval under the Fair Work Act.

The Commission's final order was to approve the Constructability WA Pty Ltd Enterprise Agreement 2020, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the terms and conditions of employment for the workers involved in the dispute. The decision underscored the importance of ensuring that enterprise agreements provide fair and reasonable terms and conditions for employees, while also maintaining mechanisms for resolving disputes and promoting transparency in the workplace.

Constructability WA Pty Ltd T/A Nino Construction

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established