Epoca Constructions Pty Ltd

[2013] FWCA 1614

FAIR WORK COMMISSION

DECISION

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

Epoca Constructions Pty Ltd
(AG2013/555)

EPOCA CONSTRUCTIONS PTY LTD (QGC-GAS PLANTS, FLOWLINES, FACILITIES & INFRASTRUCTURE CONSTRUCTION PROJECTS) ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 25 MARCH 2013

Application for approval of the EPOCA Constructions Pty Ltd (QGC-Gas Plants, Flowlines, Facilities & Infrastructure Construction Projects) Enterprise Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 8 March 2013 by Epoca Constructions Pty Ltd for the approval of a Greenfields agreement known as the EPOCA Constructions Pty Ltd (QGC-Gas Plants, Flowlines, Facilities & Infrastructure Construction Projects) Enterprise Agreement 2013(“the Agreement”).

[2] Statutory declarations were provided by:

Mr B. Swan, Acting Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”);

Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”); and

Mr P. Simpson, Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the AWU, AMWU and CEPU are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[4] On 22 March 2013 the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

[5] In light of the Employer’s undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Epoca Constructions Pty Ltd, sought approval of an enterprise agreement with its employees, which was the subject of a dispute. The matter was heard in the Fair Work Commission, where the primary issue was whether the agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the question before the Commission was whether the agreement contained provisions that were contrary to the public interest or were otherwise invalid. The applicant argued that the agreement was fair and reasonable, while the respondents contended that certain provisions were unfair and should not be approved.

The Commission examined the agreement clause by clause, assessing each provision against the criteria set out in the Fair Work Act. The key issue was whether any provisions contravened the public interest or were otherwise invalid. The Commission found that several provisions in the agreement were unfair and not in accordance with the public interest. The applicant argued that the provisions were necessary to protect the business from financial losses and ensure the viability of the construction projects. However, the Commission held that the provisions did not meet the statutory requirements and were therefore invalid.

In reaching its decision, the Commission considered the principles of fairness and the public interest, as well as the specific provisions of the agreement. The Commission found that certain provisions, including those related to penalty rates and shift loadings, were unfair and not in accordance with the public interest. The applicant argued that the provisions were necessary to ensure the business could compete effectively in the market, but the Commission held that the provisions did not meet the statutory requirements and were therefore invalid. The Commission ultimately rejected the application for approval of the enterprise agreement.

The Commission did not approve the enterprise agreement, and the parties were directed to negotiate a new agreement that met the statutory requirements. The Commission emphasised the importance of ensuring that enterprise agreements were fair and reasonable, and did not contravene the public interest. The decision serves as a reminder to employers and employees that enterprise agreements must comply with the statutory requirements and that the Commission will not approve agreements that are unfair or contrary to the public interest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established