DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cranecorp Australia Pty Ltd T/A Cranecorp Australia Pty Ltd
(AG2019/4337)

CRANECORP AUSTRALIA 2019 NORTHWEST OF WESTERN AUSTRALIA ENTERPRISE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 12 DECEMBER 2019

Application for approval of the Cranecorp Australia 2019 Northwest of Western Australia Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Cranecorp Australia 2019 Northwest of Western Australia Enterprise Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cranecorp Australia Pty Ltd T/A Cranecorp Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 22 November 2019.

[3] On 27 November 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] In respect of the deficiency with notification of the access period, I do not believe that it had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 12 December 2019. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause which remedies the inconsistencies contained in clauses 5.5, 19.2, 19.12 and 20.1 of the Agreement.

• In relation to clause 19.8 of the Agreement, where an employee has accrued more than eight weeks annual leave, the employee may be required to take up to four weeks annual leave at a time directed by the Employer where there is prior written agreement between the employee and Employer.

• In relation to clause 19.15 of the Agreement, family and domestic violence is violent, threatening or other abusive behaviour by a close relative of an employee which may include a member of the employee’s immediate family or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

[6] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 11 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the matter of Cranecorp Australia Pty Ltd T/A Cranecorp Australia Pty Ltd was brought forth to seek approval of the 2019 Northwest of Western Australia Enterprise Agreement. The applicant, Cranecorp Australia, sought to have this enterprise agreement certified as applicable to their workforce. The dispute involved whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and if it was made in good faith and without coercion. The Fair Work Commission was tasked with examining the agreement to ensure it met the necessary legal standards for approval.

The primary legal issues before the Commission included whether the agreement was genuinely negotiated between the employer and the employees, whether it contained the minimum terms and conditions required by law, and if it complied with the procedural requirements for certification. Additionally, the Commission had to consider whether the agreement was made in good faith and without coercion, as mandated by the Fair Work Act. The applicant needed to demonstrate that the agreement was not only a product of genuine negotiations but also contained all the mandatory terms and conditions, and that the process of reaching the agreement was fair and free from any undue influence.

The Commission found that the 2019 Northwest of Western Australia Enterprise Agreement was indeed the result of genuine negotiations between Cranecorp Australia and their employees. The agreement included all the mandatory terms and conditions required by law, and the process of reaching the agreement was deemed to be fair and free from coercion. The Commission was satisfied that the applicant had met all the legal criteria for the agreement's approval. Consequently, the Commission approved the enterprise agreement, allowing it to be registered and enforceable under the Fair Work Act.

The Fair Work Commission's decision resulted in the registration of the 2019 Northwest of Western Australia Enterprise Agreement, which is now legally binding on Cranecorp Australia and its employees. This outcome ensures that the terms and conditions outlined in the agreement are recognised and enforceable, providing a stable and fair working environment for the workforce.

Cranecorp Australia Pty Ltd T/A Cranecorp Australia 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