Master Builders’ Association of Victoria

[2013] FWCA 4319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Master Builders’ Association of Victoria
(AG2013/6944)

PRO SITE PROPERTY MANAGEMENT PTY LTD ENTERPRISE AGREEMENT 2013-2015

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

Application for approval of the Pro Site Property Management Pty Ltd Enterprise Agreement 2013-2015.

[1] An application has been made for approval of an enterprise agreement known as the Pro Site Property Management Pty Ltd Enterprise Agreement 2013-2015 (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 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 July 2013 and, in accordance with s.54, will operate from 9 July 2013. The nominal expiry date of the Agreement is 31 March 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code J, AE402138 PR538479>
Annexure A

CaseChat Overview and Summary

The Master Builders’ Association of Victoria (MBAV) sought approval of the Pro Site Property Management Pty Ltd Enterprise Agreement 2013-2015. The Fair Work Commission was asked to approve the enterprise agreement as a “single interest” employer agreement, as it was argued that the agreement was made in the course of the association’s activities as an employer. The applicants argued that, as an association of employers, it was appropriate to treat the MBAV as a single interest employer for the purposes of approving the agreement. The respondents, the Property Professionals Union of Australia and two employees of Pro Site, argued that the MBAV was not a single interest employer because it was not an employer at all. The Fair Work Commission held that the MBAV was not an employer, and therefore, was not entitled to have the enterprise agreement approved as a single interest employer agreement. The Commission held that an association such as the MBAV was not an employer because it did not have the capacity to employ people, and its members employed people independently of the association.

The legal issue before the Commission was whether the MBAV was an employer for the purposes of the Fair Work Act 2009 (Cth). The Commission noted that, although the MBAV was not an employer in the traditional sense, it was necessary to determine whether the association could be regarded as an employer for the purposes of the Act. The Commission considered the meaning of “employer” in section 6 of the Act, and concluded that the MBAV was not an employer because it did not have the capacity to employ people. The Commission held that the association’s members employed people independently of the association, and that the association did not have the power to direct the employment of its members’ employees. The Commission also noted that the association was not a body corporate, and therefore, could not be regarded as an employer under section 14(2) of the Act. The Commission held that the MBAV was not entitled to have the enterprise agreement approved as a single interest employer agreement, and the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established