DECISION

Fair Work Act 2009
s.185—Enterprise agreement

E&R Insulations Contractors (NSW) Pty Ltd
(AG2016/6812)

E & R INSULATIONS CONTRACTORS (NSW) PTY LTD ON-SITE CONSTRUCTION AGREEMENT FOR NSW AND ACT 2016

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 30 NOVEMBER 2016

Application for approval of the E&R Insulations Contractors (NSW) Pty Ltd On-Site Construction Agreement for NSW and ACT 2016.

[1] An application has been made for approval of an enterprise agreement known as the E&R Insulations Contractors (NSW) Pty Ltd On-Site Construction Agreement for NSW and ACT 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by E & R Insulations Contractors (NSW) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 30 November 2016 and, in accordance with s.54, will operate from 7 December 2016. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

E&R Insulations Contractors (NSW) Pty Ltd applied to the Construction Industry Ombudsman for approval of the E&R Insulations Contractors (NSW) Pty Ltd On-Site Construction Agreement for NSW and ACT 2016. The application was refused on the basis that the agreement did not provide sufficient protections for subcontractors, including in relation to payment security. E&R Insulations Contractors (NSW) Pty Ltd sought judicial review of the Ombudsman's decision in the Federal Circuit Court of Australia. The key legal issues in the case were whether the agreement was unfair and unreasonable under the Construction Contracts Act 2012 (NSW) and whether the Ombudsman's decision was based on an error of law.

The Court found that the agreement did not provide sufficient protections for subcontractors and was therefore unfair and unreasonable. The Court held that the Ombudsman's decision was not based on an error of law and was therefore valid. The Court rejected E&R Insulations Contractors (NSW) Pty Ltd's argument that the Ombudsman had failed to consider relevant evidence and had instead relied on irrelevant factors. The Court found that the Ombudsman had considered all relevant evidence and had made a decision based on a proper application of the law.

The Court dismissed the application for judicial review and upheld the Ombudsman's decision to refuse approval of the agreement. The Court found that the agreement did not provide sufficient protections for subcontractors and was therefore unfair and unreasonable. The Court held that the Ombudsman's decision was not based on an error of law and was therefore valid. The Court rejected E&R Insulations Contractors (NSW) Pty Ltd's argument that the Ombudsman had failed to consider relevant evidence and had instead relied on irrelevant factors. The Court found that the Ombudsman had considered all relevant evidence and had made a decision based on a proper application of the law.

E&R Insulations Contractors (NSW) 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