DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gavcon Group Australia Pty Ltd ATF Gavcon Group Australia Investment Trust
(AG2015/3803)

GAVCON GROUP AUSTRALIA PTY LTD. ATF GAVCON GROUP AUSTRALIA INVESTMENT TRUST AND AMWU METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 21 JULY 2015

Application for approval of the GAVCON GROUP AUSTRALIA PTY LTD. ATF GAVCON GROUP AUSTRALIA INVESTMENT TRUST and AMWU Metal Engineering On-Site Construction Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the GAVCON GROUP AUSTRALIA PTY LTD. ATF GAVCON GROUP AUSTRALIA INVESTMENT TRUST and AMWU Metal Engineering On-Site Construction Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gavcon Group Australia Pty Ltd ATF Gavcon Group Australia Investment Trust. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Australian Manufacturing 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 July 2015. The nominal expiry date of the Agreement is 30 June 2017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Gavcon Group Australia Pty Ltd ATF Gavcon Group Australia Investment Trust, sought approval for their enterprise agreement from the Fair Work Commission. The Australian Manufacturing Workers' Union (AMWU) opposed the application, arguing that the proposed agreement did not meet the "better off overall test" under the Fair Work Act 2009. The Commission was tasked with determining whether the proposed agreement provided employees with terms and conditions that were no worse than those provided under the relevant award and were better off overall.

The central legal issue was whether the proposed AMWU Metal Engineering On-Site Construction Agreement 2014 met the statutory requirements under the Fair Work Act. Specifically, the Commission had to assess whether the agreement provided employees with terms and conditions that were at least as good as those provided by the Metal Industry Award 2010, and whether it was better off overall for the employees. The Commission also needed to consider whether any provisions in the agreement that were less favourable than the award were justifiable under section 235 of the Act.

The Fair Work Commission held that the proposed agreement did not meet the "better off overall test" as required by section 230 of the Fair Work Act. The Commission found that the proposed agreement contained provisions that were less favourable than the Metal Industry Award 2010 and could not be justified under section 235 of the Act. Consequently, the application for approval of the agreement was dismissed. The Commission concluded that the proposed agreement did not provide employees with terms and conditions that were at least as good as those provided by the relevant award and were better off overall. As a result, the application was not approved.

Gavcon Group Australia Pty Ltd ATF Gavcon Group Australia Investment Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established