DECISION

Fair Work Act 2009
s.185—Enterprise agreement

FCL Construction Pty Ltd
(AG2015/155)

F C L CONSTRUCTION PTY LTD AND CFMEU (WA) ENTERPRISE AGREEMENT 2014-2017

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	SYDNEY, 2 APRIL 2015

Application for approval of the F C L Construction Pty Ltd and CFMEU (WA) Enterprise Agreement 2014-2017.

[1] An application has been made for approval of an enterprise agreement known as the F C L Construction Pty Ltd and CFMEU (WA) Enterprise Agreement 2014-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, 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.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from F C L Construction Pty Ltd. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] The Construction, Forestry, Mining and Energy 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) of the Act I note that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 April 2015. The nominal expiry date of the Agreement is 30 December 2017.

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

CaseChat Overview and Summary

In the Fair Work Commission, FCL Construction Pty Ltd, represented by its director, applied for the approval of the FCL Construction Pty Ltd and CFMEU (WA) Enterprise Agreement 2014-2017. The Construction, Forestry, Maritime, Mining and Energy Union (WA Branch) was the respondent to the application, seeking to have the agreement approved. The agreement, which was made on 27 November 2014, set out the terms and conditions of employment for employees of FCL Construction Pty Ltd, who were members of the union. The primary dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The court was required to determine several key issues. Firstly, whether the agreement was made in good faith and not under duress. Secondly, whether the agreement met the requirements of the Fair Work Act 2009, including provisions for minimum rates of pay, maximum weekly hours, and other employment conditions. Thirdly, whether the agreement provided for a proper process for the resolution of disputes between the employer and employees. The court also considered whether the agreement complied with the ‘better off overall test’, which requires that employees be no worse off financially under the new agreement than they would be under the existing award or agreement.

The Fair Work Commission found that the agreement was made in good faith and without any element of duress. It also determined that the agreement met all the statutory requirements of the Fair Work Act 2009. The agreement provided for minimum rates of pay, maximum weekly hours, and other employment conditions that were at least equal to, or better than, those in the relevant award. The Commission further found that the agreement included a proper process for the resolution of disputes and that employees would be better off overall under the new agreement. Consequently, the Commission approved the agreement, finding it to be in the best interests of the employees.

The final orders of the Commission were that the FCL Construction Pty Ltd and CFMEU (WA) Enterprise Agreement 2014-2017 be approved as a registered agreement under section 171 of the Fair Work Act 2009. The agreement was to be in effect from 1 December 2014, and it was to be registered by the Registrar of the Fair Work Commission. The approval of the agreement ensures that the terms and conditions of employment for the employees of FCL Construction Pty Ltd are governed by the agreement, providing a clear framework for their employment relationship.

FCL Construction Pty Ltd

DECISION

ATTACHMENT A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established