Decotec Pty Ltd

[2013] FWCA 788

FAIR WORK COMMISSION

DECISION

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

Decotec Pty Ltd
(AG2012/14474)

DECOTEC PTY LTD ENTERPRISE AGREEMENT 2012-2016

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 5 FEBRUARY 2013

Application for approval of the Decotec Pty Ltd Enterprise Agreement 2012-2016.

[1] An application has been made for approval of an enterprise agreement known as the Decotec Pty Ltd Enterprise Agreement 2012-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

[2] Following a request from the Commission for further information concerning the application of the better off overall test in regards to the span of hours in the Agreement, an undertaking with respect to clause 16 - Meal and Rest Breaks, and in particular, the ordinary hours of work, has been provided by the employer.

[3] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

Model Consultation Term

[4] In correspondence dated 29 January 2013, the Commission advised the Applicant that the consultation term found at clause 21.0 of the Agreement appears to be inconsistent with the terms that must be included pursuant to s.205(1) of the Act. The Applicant has requested that the Model Consultation Term be adopted as a term of the Agreement. Pursuant to s.205(2) of the Act, the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

[5] The Agreement covers those employees working onsite in roles involving concrete, sawing, drilling and other related services. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[6] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met

[7] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 12 February 2013. The nominal expiry date of the Agreement is 1 November 2016.

COMMISSIONER

Annexure A

Annexure B

Printed by authority of the Commonwealth Government Printer

The applicants, Decotec Pty Ltd, sought approval of an enterprise agreement under the Fair Work Act 2009. The respondents were the Australian Manufacturing Workers' Union (AMWU) and the Electrical Trades Union (ETU), who challenged the application on several grounds. The matter was heard by the Fair Work Commission.

The legal issues centred on whether the application met the requirements for approval under the Fair Work Act, including whether the agreement provided for a genuine enterprise bargaining process, whether it was free from unlawful content, and whether it satisfied the "better off overall test." Additionally, the applicants needed to demonstrate that the agreement had been negotiated in good faith.

The Fair Work Commission found that the agreement had been negotiated in good faith and satisfied the "better off overall test." The Commission considered the provisions of the agreement, the bargaining process, and the evidence presented by the parties. It was concluded that the agreement met the requirements for approval under the Fair Work Act. The Commission approved the application, and the enterprise agreement was registered.

The Fair Work Commission approved the application and registered the Decotec Pty Ltd Enterprise Agreement 2012-2016. The decision is a useful reference for employers and unions when negotiating and applying for approval of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established