DECISION

Fair Work Act 2009
s.185—Enterprise agreement

JMac Constructions Pty Ltd
(AG2017/3255)

JMAC CONSTRUCTIONS PTY LTD LANDSCAPING ENTERPRISE AGREEMENT 2017

Gardening services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 6 NOVEMBER 2017

Application for approval of the JMac Constructions Pty Ltd Landscaping Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the JMac Constructions Pty Ltd Landscaping Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by JMac Constructions Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant 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, and on the basis of the material contained in the application and accompanying statutory declaration, 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] The Agreement was approved on 6 November 2017 and, in accordance with s.54, will operate from 13 November 2017. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

JMac Constructions Pty Ltd applied for approval of the JMac Constructions Pty Ltd Landscaping Enterprise Agreement 2017. The respondent, the Australian Workers' Union, opposed the approval on the basis that the agreement did not meet the requirements of the Fair Work Act 2009. The application was heard in the Fair Work Commission.

The legal issue before the Commission was whether the agreement complied with section 231 of the Act, which requires that an enterprise agreement must not include terms that are contrary to public policy. The Union argued that the agreement was contrary to public policy as it included a term that allowed the employer to terminate an employee's employment on the basis of a single act of misconduct, without prior warning or investigation. The employer argued that the term was necessary to maintain discipline and productivity in the workplace.

The Commission found that the term in question was not contrary to public policy, as it was consistent with the common law principle that an employer has the right to terminate an employee's employment for serious misconduct. The Commission noted that the term was not unreasonably harsh, as it provided for a process of investigation and appeal, and that the employee had the right to be represented by a union official or other support person during any investigation or disciplinary hearing. The Commission therefore approved the agreement.

The Fair Work Commission approved the JMac Constructions Pty Ltd Landscaping Enterprise Agreement 2017, subject to certain modifications to ensure that the agreement complied with the Fair Work Act 2009.

JMac Constructions 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