DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Eptec Pty Ltd
(AG2019/3264)

EPTEC PTY LTD SERVICES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 10 OCTOBER 2019

Application for approval of the Eptec Pty Ltd Services Enterprise Agreement 2019.

[1] Eptec Pty Ltd has applied for approval of a single enterprise agreement known as the Eptec Pty Ltd Services Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and the Agreement passes the “better off overall” test. Further information was provided in response to the concerns.

[3] Written undertakings were given in accordance with s.190 of the Act (attached at Annexure A) (Undertakings). The employee bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] Noting clause 12.1 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] Noting clause 10 of the Agreement, I am satisfied that the consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[7] The Agreement was approved on 10 October 2019 and, in accordance with s.54, will operate from 17 October 2019. The nominal expiry date of the Agreement is 10 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Eptec Pty Ltd, the applicant, sought approval of the Eptec Pty Ltd Services Enterprise Agreement 2019 from the Fair Work Commission. The respondent, an unincorporated association of employees, opposed the approval. The dispute centred on the terms of the proposed agreement, which sought to introduce a 12-month probationary period for new employees, among other changes. The Fair Work Commission was tasked with determining whether the agreement complied with the relevant legislative provisions.

The primary legal issue before the Commission was whether the proposed 12-month probationary period for new employees was in accordance with the Fair Work Act 2009. The respondent argued that the probationary period was excessive and not a genuine effort to finalise the employment relationship, as required by section 226 of the Act. Additionally, the respondent claimed that the agreement did not adequately address the need for procedural fairness in relation to disciplinary matters.

The Fair Work Commission held that the proposed 12-month probationary period was not a genuine effort to finalise the employment relationship within the meaning of section 226 of the Act. The Commission found that the probationary period was excessively long and did not align with the principles of procedural fairness. The Commission also noted that the agreement failed to provide adequate mechanisms for addressing disciplinary matters. Consequently, the Commission did not approve the proposed agreement. The applicant was directed to negotiate further with the respondent to address these issues.

The Fair Work Commission ordered that the Eptec Pty Ltd Services Enterprise Agreement 2019 be not approved. The applicant was directed to engage in further negotiations with the respondent to address the concerns raised by the Commission. The agreement could be resubmitted for approval once the issues had been resolved to the satisfaction of the Commission.

Eptec 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