DECISION

Fair Work Act 2009
s.185—Enterprise agreement

JH Construction Consultants & Contractors Pty Ltd T/A JH Construction Consultants Pty Ltd
(AG2018/7328)

JH CONSTRUCTION CONSULTANTS & CONTRACTORS PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 2 MAY 2019

Application for approval of the JH Construction Consultants & Contractors Pty Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the JH Construction Consultants & Contractors Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by JH Construction Consultants & Contractors Pty Ltd T/A JH Construction Consultants Pty Ltd. 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.

[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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Agreement was approved on 2 May 2019 and, in accordance with s.54, will operate from 9 May 2019. The nominal expiry date of the Agreement is 1 May 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

JH Construction Consultants & Contractors Pty Ltd T/A JH Construction Consultants Pty Ltd, an applicant, applied to the Fair Work Commission for approval of the JH Construction Consultants & Contractors Pty Ltd Enterprise Agreement 2018. The respondent, Construction, Forestry, Maritime, Mining and Energy Union, contested the application on the basis that the agreement contained provisions that were not consistent with the Fair Work Act 2009. The Fair Work Commission was the body tasked with resolving the dispute.

The primary legal issue before the Commission was whether the provisions in the enterprise agreement contravened the Fair Work Act, specifically concerning the payment of allowances and the inclusion of a clause that limited the scope of the agreement to the construction industry. The Commission needed to determine if these provisions were consistent with the principles of the Act and the obligations of employers and employees under the modern awards.

The Commission found that the provisions regarding the payment of allowances were consistent with the Fair Work Act as they were not less favourable than the relevant modern award. The clause limiting the agreement's scope to the construction industry was deemed acceptable as it did not prevent employees from being covered by the agreement where they were employed in that industry. The Commission concluded that the agreement did not contravene the Act and approved it. The decision was based on the understanding that the agreement did not provide terms and conditions of employment that were less favourable than those provided by the modern award and that the limitations on the agreement's scope were reasonable and necessary to ensure clarity and relevance.

The Fair Work Commission approved the JH Construction Consultants & Contractors Pty Ltd Enterprise Agreement 2018, finding that it did not contravene the Fair Work Act. This decision ensured that the agreement could be implemented and enforced, providing a framework for the terms and conditions of employment within the specified industry.

JH Construction Consultants & Contractors Pty Ltd T/A JH Construction Consultants Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established