Intercon Engineering Pty Ltd T/A Intercon Engineering Pty Ltd

[2024] FWCA 3865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Intercon Engineering Pty Ltd T/A Intercon Engineering Pty Ltd

(AG2024/3783)

INTERCON ENGINEERING PTY LTD NATIONAL ENTERPRISE AGREEMENT 2024-2028

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 5 NOVEMBER 2024

Application for approval of the Intercon Engineering Pty Ltd National Enterprise Agreement 2024-2028

Intercon Engineering Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Intercon Engineering Pty Ltd National Enterprise Agreement 2024-2028 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The Employer 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.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the Employer’s responses to issues identified, and the Statement of Principles.[1]

National Employment Standards

I observe that clauses 14.1.1(e)(ii), 17.1(ii), and 17.1(c) of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6(a) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 12 November 2024. The nominal expiry date of the Agreement is 5 November 2028.

COMMISSIONER

Annexure A

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the employer, Intercon Engineering Pty Ltd, for the approval of the National Enterprise Agreement 2024-2028. The applicant sought to have the agreement, which was negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), recognised and enforced as a national system instrument. The dispute centred around the terms and conditions of employment for employees covered by the agreement, with the CFMEU arguing that certain provisions were not in line with the national system principles.

The primary legal issue before the Commission was whether the agreement complied with the national system principles as outlined in the Fair Work Act 2009. Specifically, the CFMEU contended that the proposed agreement did not sufficiently protect employees' rights and entitlements, particularly in relation to pay rates and working conditions. The Commission needed to determine if the agreement was fair and reasonable, taking into account the need for flexibility in the industry and the bargaining power of the parties.

In delivering the decision, the Commission examined the negotiation process and the content of the proposed agreement. The Commission found that while there were areas of concern, the overall agreement was fair and reasonable. The Commission noted the efforts made by the parties to negotiate in good faith and the provisions included to protect employees' rights, such as the inclusion of a dispute resolution process and provisions for minimum wage rates. The Commission concluded that the agreement was in line with the national system principles and approved the application for the agreement to be recognised and enforced.

The Fair Work Commission approved the Intercon Engineering Pty Ltd National Enterprise Agreement 2024-2028 as a national system instrument. This decision recognises the agreement as binding on the parties and enforceable under the Fair Work Act 2009. The approval ensures that the terms and conditions set out in the agreement will apply to the employees covered by it, providing a framework for employment relations within the industry for the next four years.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established