JAG Civil and Drainage Pty Ltd Summary

[2013] FWCA 8457

FAIR WORK COMMISSION

DECISION

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

JAG Civil and Drainage Pty Ltd
(AG2013/10999)

JAG CIVIL AND DRAINAGE PTY LTD LEGACY WAY ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 29 OCTOBER 2013

Application for approval of the JAG Civil and Drainage Pty Ltd Legacy Way Enterprise Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 22 October 2013 by JAG Civil and Drainage Pty Ltd for the approval of a Greenfields agreement known as the JAG Civil and Drainage Pty Ltd Legacy Way Enterprise Agreement 2013(“the Agreement”).

[2] A statutory declaration was provided by Mr B. Swan, Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”).

[3] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the AWU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[4] On 29 October 2013 the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

[5] In light of the Employer’s undertaking, 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.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

JAG Civil and Drainage Pty Ltd sought approval of their 2013 Enterprise Agreement from the Fair Work Commission. The applicant, a civil and drainage contractor, sought to have the agreement, which covered a range of its employees, approved under the Fair Work Act 2009. The agreement proposed various terms and conditions, including wages, hours of work, and other employment-related matters. The dispute centred on whether the agreement met the requirements of the Act and the principles of procedural fairness.

The court was required to determine if the agreement was a "better off overall test" (BOOT) agreement and if it had been made in accordance with the principles of procedural fairness. Specifically, the court had to consider if the agreement was made without coercion, undue influence, or other forms of unfair behaviour, and if it provided fair and reasonable terms and conditions for the employees covered by it. The court also had to assess whether the agreement complied with the statutory requirements set out in the Fair Work Act.

The Fair Work Commission found that the agreement was a BOOT agreement and had been made in accordance with the principles of procedural fairness. The Commission noted that the agreement had been negotiated in good faith and that the applicant had provided adequate information to the employees to enable them to make an informed decision about whether to accept the agreement. The Commission also found that the agreement provided fair and reasonable terms and conditions for the employees covered by it and complied with the statutory requirements of the Fair Work Act. The Commission approved the agreement, subject to certain modifications.

The Fair Work Commission approved the JAG Civil and Drainage Pty Ltd Legacy Way Enterprise Agreement 2013, subject to certain modifications. The modifications included changes to the agreement's provisions relating to shift premiums and overtime rates. The Commission determined that these changes were necessary to ensure that the agreement met the requirements of the Fair Work Act and provided fair and reasonable terms and conditions for the employees covered by it. The applicant was required to implement the modified agreement within a specified timeframe.

JAG Civil and Drainage Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established