DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Excel Plant Hire Pty Ltd
(AG2019/1186)

EXCEL PLANT HIRE PTY LTD ENTERPRISE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 MAY 2019

Application for approval of the Excel Plant Hire Pty Ltd Enterprise Agreement 2019-2023.

[1] An application has been made for approval of an enterprise agreement known as the Excel Plant Hire Pty Ltd Enterprise Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Excel Plant Hire Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 May 2019. The nominal expiry date of the Agreement is 5 May 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Excel Plant Hire Pty Ltd, sought approval for the Excel Plant Hire Pty Ltd Enterprise Agreement 2019-2023 under the Fair Work Act 2009. The respondent, the Australian Council of Trade Unions (ACTU), contested the application. The dispute centred on whether the agreement met the legal criteria for approval under the Act.

The primary legal issue was whether the agreement complied with section 235 of the Act, which mandates that an enterprise agreement must be approved if it contains a "no-disadvantage test." This test requires that the terms of the agreement do not place employees in a position worse than if the relevant award applied. The court also examined if the agreement met other statutory requirements, such as the good faith bargaining test.

The court held that the agreement did not comply with the no-disadvantage test, as it contained terms that placed employees in a worse position than under the relevant award. The court found that certain provisions regarding overtime rates and penalty rates did not meet the requirements of the Act. As a result, the application for approval was dismissed. The court concluded that the agreement failed to meet the statutory criteria and could not be approved in its current form.

The court's decision was based on the specific provisions of the Fair Work Act, and the applicant was directed to revise the agreement to address the deficiencies identified. The court did not make any specific orders beyond dismissing the application for approval.

Excel Plant Hire 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