Master Builders’ Construction and Housing Association of the Australian Capital Territory

[2013] FWCA 5659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Master Builders’ Construction and Housing Association of the Australian Capital Territory
(AG2013/7991)

GUIDELINE ACT PTY LTD ENTERPRISE AGREEMENT 2014-2018

Building, metal and civil construction industries
COMMISSIONER DEEGAN	CANBERRA, 13 AUGUST 2013

Application for approval of the Guideline ACT Pty Ltd Enterprise Agreement 2014-2018.

[1] An application has been made for approval of an enterprise agreement known as the Guideline ACT Pty Ltd Enterprise Agreement 2014-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Master Builders’ Construction and Housing Association of the Australian Capital Territory. The Agreement is a single-enterprise agreement.

[2] 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.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 February 2014. The nominal expiry date of the Agreement is 1 February 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Master Builders’ Construction and Housing Association of the Australian Capital Territory applied for approval of the Guideline ACT Pty Ltd Enterprise Agreement 2014-2018. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, objected to the application on the grounds that the agreement contained unfair terms. The Commission was required to determine whether the agreement contained any terms that were unfair within the meaning of section 232 of the Fair Work Act 2009 (Cth). The Commission noted that the agreement contained a term that provided that employees were to be paid for time worked on public holidays, including Christmas Day. The union argued that this term was unfair because it required employees to work on public holidays without receiving additional pay or the opportunity to take leave in lieu. The Commission rejected this argument, finding that the term was not unfair because it was consistent with the practice in the building and construction industry and did not significantly disadvantage the employees. The Commission also noted that the agreement contained a term that provided for the payment of a bonus to employees who had worked for the employer for a period of five years or more. The union argued that this term was unfair because it created an uneven playing field between new and existing employees. However, the Commission found that the term was not unfair because it was not manifestly unreasonable and did not significantly disadvantage the employees. The Commission approved the agreement, subject to certain modifications to ensure compliance with the Fair Work Act. The modifications included the removal of a term that allowed the employer to unilaterally vary the agreement and the addition of a term that provided for the payment of additional leave to employees who had worked for the employer for a period of five years or more. The employer and the union were directed to take all necessary steps to give effect to the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established