InfraBuild Construction Solutions Pty Ltd T/A InfraBuild Construction Solutions Summary

[2021] FWCA 6024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

InfraBuild Construction Solutions Pty Ltd T/A InfraBuild Construction Solutions
(AG2021/7019)

INFRABUILD CONSTRUCTION SOLUTIONS NATIONAL ENTERPRISE AGREEMENT 2018 - 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 28 SEPTEMBER 2021

Application for approval of the InfraBuild Construction Solutions National Enterprise Agreement 2018 - 2021

[1] An application has been made for approval of an enterprise agreement known as the InfraBuild Construction Solutions National Enterprise Agreement 2018 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by InfraBuild Construction Solutions Pty Ltd T/A InfraBuild Construction Solutions. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of 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.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian 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.

[6] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 15(e) – Public Holidays.

However, noting clause 6.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 October 2021. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for the approval of the InfraBuild Construction Solutions National Enterprise Agreement 2018 - 2021. The applicant, InfraBuild Construction Solutions Pty Ltd, trading as InfraBuild Construction Solutions, sought approval for the agreement which had been negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around whether the agreement met the necessary requirements under the Fair Work Act 2009 for it to be approved by the Commission.

The central legal issues that the Commission needed to address were whether the agreement was a bona fide enterprise agreement, whether it complied with the procedural requirements set out in the Fair Work Act, and whether it provided for the appropriate protections and entitlements for the employees covered by the agreement. In particular, the Commission had to consider whether the agreement appropriately balanced the interests of the employer and the employees, and whether it complied with the ‘better off overall test’ which requires that no employee be worse off as a result of the agreement.

The Fair Work Commission found that the agreement was a bona fide enterprise agreement that had been negotiated in good faith. The Commission determined that the agreement met the procedural requirements of the Fair Work Act and provided adequate protections and entitlements for the employees. The Commission was satisfied that the agreement passed the better off overall test, as it did not result in any employee being worse off. Consequently, the Commission approved the agreement, finding that it was in the best interests of the employees and the employer.

The Commission's final order was to approve the InfraBuild Construction Solutions National Enterprise Agreement 2018 - 2021, which would now be applicable to the employees covered by the agreement. This decision provided certainty for both the employer and the employees, ensuring that the agreement would govern their employment relationship for the duration of the agreement.

InfraBuild Construction Solutions Pty Ltd T/A InfraBuild Construction Solutions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established