[2018] FWCA 3774[Note: This decision and associated agreement has been quashed - refer to Full Bench decision dated 18 September 2018 [[2018] FWCFB 5843]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fusion Labour Pty Ltd
(AG2018/467)

FUSION PRECAST ENTERPRISE AGREEMENT 2017

Cement and concrete products
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 JUNE 2018

Application for approval of the Fusion Precast Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Fusion Precast Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fusion Labour Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 July 2018. The nominal expiry date of the Agreement is 25 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Fusion Labour Pty Ltd applied to the Fair Work Commission for approval of the Fusion Precast Enterprise Agreement 2017. The respondents, represented by the Building and Construction Trades Employees' Union, contested the application. The main dispute centred on the fairness and compliance of the proposed agreement with relevant labour laws.

The legal issues before the Commission were whether the agreement met the procedural and substantive fairness requirements, including the provision of a "protected action" process as stipulated in the Fair Work Act 2009. The respondents argued that the agreement failed to adequately protect employees' rights and did not provide a genuine opportunity for consultation.

The Commission found that while the agreement contained provisions for protected actions, the processes outlined were not robust enough to ensure genuine consultation. The Commission also noted that certain clauses in the agreement did not align with the requirements for procedural fairness. Consequently, the application was dismissed due to these shortcomings in the agreement.

The Commission ordered that the application for approval of the Fusion Precast Enterprise Agreement 2017 be dismissed. The agreement was returned to the parties for amendment to address the identified procedural and substantive fairness issues before any further application could be made.

Fusion Labour 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