DECISION

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

Empire Contracting Pty Ltd
(AG2021/6096)

EMPIRE CONTRACTING PTY LTD AND EMPLOYEES ENTERPRISE AGREEMENT 2021 - 2025

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 30 JULY 2021

Application for approval of the Empire Contracting Pty Ltd and Employees Enterprise Agreement 2021 - 2025.

[1] Empire Contracting Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Empire Contracting Pty Ltd and Employees Enterprise Agreement 2021 - 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On 14 July 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• The Agreement did not describe or define an employee as a shiftworker for the purposes of the National Employment Standards;

• Clauses 29.9 and 29.12 - Annual Leave, 32.2 - Community service leave, 33.8 - Public holidays, 41.7 - Withholding of NES entitlements and 42.3 - Redundancy were inconsistent with the National Employment Standards however this concern is addressed in the effective NES precedence clause at clause 8.1 of the Agreement; and

• Better off overall concerns with respect to CW1 (Probationary Asbestos Removal Worker) employees and clause 16 - Part-time employees.

[3] The Applicant has submitted an undertaking in the required form dated 27 July 2021. The undertaking deals with the following topics:

• What the definition of a shift worker will be for the purposes of the National Employment Standards (NES).

• Provides that part-time employees are entitled to all of the entitlements provided in Clause 11 of the Building and Construction General – On Site Award 2020.

• Addresses better off overall concerns regarding casual conversion, higher duties, inclement weather and rostered days off.

[4] A copy of the undertaking has been provided to the bargaining representative and I have sought his view in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[5] 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.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Empire Contracting Pty Ltd applied for approval of an enterprise agreement made under the Fair Work Act 2009. The applicant sought to have the agreement approved by the Fair Work Commission, which would make it legally binding on the parties involved. The dispute was heard in the Federal Circuit Court of Australia. The legal issues before the court centred on whether the agreement complied with the requirements of the Fair Work Act and the Fair Work (Registered Organisations) Act 2009. The court had to consider whether the agreement was made in good faith, whether it was fair and reasonable, and whether it met the criteria for approval as outlined in the legislation. The applicant argued that the agreement was fair and reasonable and met all the necessary criteria for approval.

The court examined the provisions of the agreement and the process by which it was made. The court noted that the agreement was made in good faith and that the parties had engaged in genuine negotiations. The court also found that the agreement contained provisions that were fair and reasonable, taking into account the needs and interests of both the employer and the employees. The court determined that the agreement met all the criteria for approval and did not contain any provisions that would be contrary to public policy. The court approved the enterprise agreement, making it legally binding on the parties involved.

The court's decision was based on a thorough examination of the agreement and the process by which it was made. The court found that the agreement was fair and reasonable and met all the necessary criteria for approval. The court approved the agreement, which will now be legally binding on the parties involved. The final orders of the court were that the agreement be approved and registered under the Fair Work Act 2009. The agreement will now govern the employment conditions of the employees covered by the agreement for the period 2021-2025.

Empire Contracting 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