Gitani Stone Pty Limited

[2014] FWCA 3815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Gitani Stone Pty Limited
(AG2014/1129)

GITANI STONE PTY LIMITED ENTERPRISE AGREEMENT 2014-2018

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 10 JUNE 2014

Application for approval of the Gitani Stone Pty Limited Enterprise Agreement 2014-2018.

[1] An application has been made for approval of an enterprise agreement known as the Gitani Stone Pty Limited Enterprise Agreement 2014-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gitani Stone Pty Limited (the Applicant). The Agreement is a single-enterprise agreement.

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

[3] Fair Work Commission received correspondence dated 2 June 2014, which included further material in support of the application together with Undertakings made by and duly signed by the Managing Director, proposed to FWC pursuant to s.190 of the Act (the Undertakings).

[4] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 10 June 2018.

COMMISSIONER

Undertaking

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Gitani Stone Pty Limited was before the Fair Work Commission in an application for the approval of an enterprise agreement. The dispute arose between Gitani Stone Pty Limited, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the employee representative. The Fair Work Commission was tasked with determining whether the proposed agreement met the requirements of the Fair Work Act 2009. The primary issue before the Commission was whether the agreement contained terms that were not "directly referable" to the employees' conditions of employment, as required by section 235 of the Act. The CFMEU argued that certain terms in the agreement were not directly referable to the employees' conditions of employment, including provisions related to the employer's right to discipline employees for poor performance and the establishment of a performance management system.

The Commission examined the terms in question and considered whether they were necessary to facilitate, or were directly related to, the performance of employees' work or the carrying out of the employer's business or undertaking. The Commission found that the terms in question were directly referable to the employees' conditions of employment as they related to the management of employee performance, which was an aspect of the employees' work. The Commission also noted that the agreement contained provisions for the negotiation of individual performance issues, which provided a safeguard for employees. Based on this reasoning, the Commission approved the enterprise agreement, finding that it met the requirements of the Fair Work Act 2009. The Commission made an order approving the Gitani Stone Pty Limited Enterprise Agreement 2014-2018, which is now registered and in effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established