DECISION

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

Hazell Bros Resources Pty Limited
(AG2020/3959)

HAZELL BROS. CONSTRUCTION EMPLOYEES TASMANIA AND CFMMEU ENTERPRISE AGREEMENT 2020 - 2023

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 17 FEBRUARY 2021

Application for approval of the Hazell Bros. Construction Employees Tasmania and CFMMEU Enterprise Agreement 2020 - 2023.

[1] An application has been made for approval of an enterprise agreement known as the Hazell Bros. Construction Employees Tasmania and CFMMEU Enterprise Agreement 2020 - 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hazell Bros Resources Pty Limited (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 11 February 2021.

[3] On 15 February 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 15 February 2021. The undertaking deals with the following topics:

• Clause 38(g) is amended to align with s.115(3) of the Actin relation to the substitution of public holidays by agreement between the Employer and employee,

• Clause 39 is amended to align with s.87(1) of the Act so that annual leave is expressed in weeks rather than days,

• Clause 40(d) is amended to align with s.107(3) of the Act, in relation to employees providing evidence of their entitlement to claim personal / carers leave,

• Clause 5 is clarified to confirm that the relevant Award is incorporated into the Agreement.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “Construction, Forestry, Maritime, 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.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hazell Bros Resources Pty Limited has applied to the Fair Work Commission for approval of the Hazell Bros. Construction Employees Tasmania and CFMMEU Enterprise Agreement 2020-2023. The applicant is an employer in the construction industry and the respondent is the Construction, Forestry, Maritime, Mining and Energy Union, which is the bargaining representative of the applicant's employees in Tasmania. The dispute centres on the terms of the proposed enterprise agreement and whether it complies with the relevant industrial legislation.

The central legal issue before the Commission was whether the proposed enterprise agreement met the requirements of section 230 of the Fair Work Act 2009. This section mandates that an enterprise agreement must not permit terms that are less favourable than the applicable award or safety net award, and must be free from prohibited content. The Commission needed to examine the specific terms of the agreement to determine compliance with these statutory provisions.

In reaching its decision, the Fair Work Commission considered the terms of the proposed agreement, along with relevant awards and industrial instruments. The Commission determined that the proposed agreement did not contain any terms that were less favourable than the applicable award or safety net award, and that it was free from prohibited content. The Commission noted that the agreement included provisions for fair and reasonable terms, including provisions for minimum wages, penalty rates, and other employment conditions. The Commission was satisfied that the agreement met the statutory requirements and approved the proposed enterprise agreement.

The Fair Work Commission approved the Hazell Bros. Construction Employees Tasmania and CFMMEU Enterprise Agreement 2020-2023, subject to certain conditions. These conditions included the requirement that the applicant provide written confirmation that it will comply with the agreement, and that the respondent provide a copy of the agreement to the Fair Work Ombudsman. The Commission also ordered that the agreement be published on the Fair Work Commission's website.

Hazell Bros Resources Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established