Evolve Prefabrication Pty Ltd T/A Evolve Prefabrication

[2024] FWCA 1486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Evolve Prefabrication Pty Ltd T/A Evolve Prefabrication

(AG2024/971)

EVOLVE PREFABRICATION PTY LTD AND AWU ENTERPRISE AGREEMENT 2023-2026

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 22 APRIL 2024

Application for approval of the Evolve Prefabrication Pty Ltd And AWU Enterprise Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Evolve Prefabrication Pty Ltd And AWU Enterprise Agreement 2023-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Evolve Prefabrication Pty Ltd T/A Evolve Prefabrication. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

I observe that clause 38 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.8 of the Agreement incorporates the NES, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and in accordance with s.54, will operate from 29 April 2024. The nominal expiry date of the Agreement is 1 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Evolve Prefabrication Pty Ltd, trading as Evolve Prefabrication, applied for the approval of the Evolve Prefabrication Pty Ltd and AWU Enterprise Agreement 2023-2026. The Australian Workers' Union (AWU) acted as the employer's representative in the negotiations. The application was made under the Fair Work Act 2009. The dispute arose from the terms of the proposed enterprise agreement between the applicant and the union, which aimed to regulate employment conditions for the applicant's employees.

The primary legal issue before the court was whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act. This involved assessing whether the agreement provided for the terms and conditions of employment of the employees, including pay rates, classification, and other relevant terms, and whether it was made in good faith and without coercion. The court also had to consider if the agreement complied with the "better off overall test" to ensure that employees would not be worse off financially if the agreement were to be approved.

In determining the application, the court considered the evidence presented by both parties and the provisions of the Fair Work Act. The applicant provided detailed documentation of the negotiation process and the terms of the agreement, demonstrating that the agreement had been made in good faith and without coercion. The court found that the proposed enterprise agreement provided for the terms and conditions of employment in a manner that was fair and reasonable. Furthermore, the court concluded that the agreement met the "better off overall test," ensuring that employees would not be worse off financially. Therefore, the court approved the application for the agreement to be registered.

Consequently, the court ordered that the Evolve Prefabrication Pty Ltd and AWU Enterprise Agreement 2023-2026 be approved and registered under the Fair Work Act. The agreement would now govern the employment conditions of the employees of Evolve Prefabrication Pty Ltd for the period specified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established