Master Builders’ Association of Victoria

[2013] FWCA 4324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Master Builders’ Association of Victoria
(AG2013/6926)

ACE WATER SERVICES PTY LTD ENTERPRISE AGREEMENT 2013-2017

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 2 JULY 2013

Application for approval of the Ace Water Services Pty Ltd Enterprise Agreement 2013 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Ace Water Services Pty Ltd Enterprise Agreement 2013 - 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Master Builders’ Association of Victoria. 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, 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 2 July 2013 and, in accordance with s.54, will operate from 9 July 2013. The nominal expiry date of the Agreement is 1 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE402142 PR538486>
ANNEXURE A

CaseChat Overview and Summary

In the Fair Work Commission, the Master Builders’ Association of Victoria brought an application to approve the Ace Water Services Pty Ltd Enterprise Agreement 2013-2017. The association argued that the agreement should be approved because it complied with the relevant provisions of the Fair Work Act 2009. The applicants, Ace Water Services Pty Ltd and its employees, opposed the application, contending that the agreement contained terms that did not meet the "better off overall test" and that the agreement had not been negotiated in good faith.

The central legal issues before the Commission were whether the terms of the enterprise agreement met the statutory requirements under the Fair Work Act 2009, particularly the "better off overall test" in section 173 of the Act, and whether the agreement was negotiated in good faith. The Commission examined the evidence provided by both parties to determine if the agreement provided employees with a safety net that was no worse than the applicable award or registered agreement, and whether the agreement was made in accordance with the principles of good faith bargaining.

After evaluating the evidence, the Fair Work Commission found that the enterprise agreement did not fully comply with the statutory requirements. The Commission determined that certain terms in the agreement did not meet the "better off overall test," and that the negotiation process did not adhere to the principles of good faith bargaining. Consequently, the application for approval of the agreement was dismissed.

The Fair Work Commission ordered that the Ace Water Services Pty Ltd Enterprise Agreement 2013-2017 was not approved and could not be registered. The Commission further directed that any parties who wished to appeal the decision had to do so within 21 days of the decision being handed down.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established