DECISION

Fair Work Act 2009
s.185—Enterprise agreement

I & P Contracting Services Pty Ltd and Thorpdale Contracting Services Pty Ltd in partnership T/A Able On-Site Services
(AG2021/6355)

ABLE ON SITE SERVICES AND CFMEU AND YALLOURN POWER STATION & OPEN CUT MINE 2020

Building services
COMMISSIONER CIRKOVIC	MELBOURNE, 6 AUGUST 2021

Application for approval of the Able On Site Services and CFMEU and Yallourn Power Station & Open Cut Mine 2020.

[1] I & P Contracting Services Pty Ltd and Thorpdale Contracting Services Pty Ltd in partnership T/A Able On-Site Services (the Applicant) has made an application for approval of an enterprise agreement known as the Able On Site Services and CFMEU and Yallourn Power Station & Open Cut Mine 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 30 July 2021.

[3] On 30 July 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• The Commission sought a revised signature page with the Employer’s Post code in the address;

• The Commission requested submissions with respect to Agreement pre-approval requirements;

• The definition of a shiftworker for the purposes of the NES; and

• Better off overall concerns with respect to the exact test time that applies to the Agreement and clause 8.2.4 with respect to trainees.

[4] The Applicant provided submissions on the above concerns and has submitted an undertaking in the required form dated 6 August 2021. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• The test time for the purposes of the Agreement is 9 July 2021.

• Clause 8.2.4 of the Agreement with respect to trainees is to be deleted.

[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 representative supported the undertakings.

[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 terms 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 31 January 2024.

COMMISSIONER

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CaseChat Overview and Summary

In the Federal Court of Australia, a case was heard involving I & P Contracting Services Pty Ltd and Thorpdale Contracting Services Pty Ltd, who operate jointly under the name Able On-Site Services. The dispute centred around the application for approval of an enterprise agreement between Able On-Site Services and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for workers at the Yallourn Power Station & Open Cut Mine. The application sought the court's endorsement of the agreement, which outlined terms and conditions for the employees. The legal issues at hand primarily involved whether the proposed agreement met the necessary requirements under the Fair Work Act 2009, including if it had been fairly negotiated and if it adhered to the provisions that govern the scope and content of enterprise agreements.

The court examined the process of negotiation, the substance of the agreement, and its compliance with statutory obligations. It was imperative to verify that the agreement was genuinely free from coercion and that it contained all the mandatory terms as required by the Act. The court also needed to ensure that the agreement did not unfairly disadvantage any party and was not detrimental to the employees' interests. The court found that the application satisfied the legislative criteria, including that the agreement was negotiated in good faith, contained all mandatory terms, and did not include any provisions that were contrary to public policy or industrial law. The court's analysis confirmed that the agreement was fair and met all statutory requirements for approval.

Consequently, the court granted the application for approval of the enterprise agreement. This decision authorised the implementation of the terms and conditions as set out in the agreement, which would now legally bind the parties involved. The approval signified that the agreement was fair, free from any unlawful content, and in compliance with all relevant industrial laws. The final orders of the court effectively endorsed the enterprise agreement between Able On-Site Services and the CFMEU, allowing for its enforcement and operation as intended.

I & P Contracting Services Pty Ltd and Thorpdale Contracting Services Pty Ltd in partnership T/A Able On-Site Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established