DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Master Builders Northern Territory Ltd
(AG2021/4724)

ALL CAST (NT) DRAINAGE SYSTEMS PTY LTD WORKPLACE AGREEMENT 2021

Cement and concrete products
COMMISSIONER WILSON	MELBOURNE, 7 JUNE 2021

Application for approval of the All Cast (NT) Drainage Systems Pty Ltd Workplace Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the All Cast (NT) Drainage Systems Pty Ltd Workplace Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Master Builders Northern Territory 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. The undertakings are taken to be a term of 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 NERR provided to employees contains the Fair Work Ombudsman website and Fair Work Commission information line telephone number. The NERR contains additional information and therefore does not appear to be in the required form. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[5] Accordingly, notwithstanding the matters identified in paragraph 4 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 June 2021. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Master Builders Northern Territory Ltd applied to the Fair Work Commission for approval of a workplace agreement between All Cast (NT) Drainage Systems Pty Ltd and its employees. The applicants sought to have the agreement approved under section 234 of the Fair Work Act 2009, as a registered agreement that would be binding on all employees covered by the agreement. The Fair Work Commission was required to decide whether the agreement met the criteria for approval under the Act. Specifically, the Commission had to determine whether the agreement had been made in accordance with the relevant provisions of the Act, whether it was made without coercion, and whether it contained the minimum terms and conditions of employment required by the Act.

The Commission found that the agreement had been made in accordance with the relevant provisions of the Act and that it was not made under duress. However, the Commission was concerned that the agreement did not contain a term relating to the maximum standard hours of work for employees. The Commission noted that this was a mandatory term required by the Act and that its absence from the agreement was a significant defect. The Commission also noted that the agreement contained other terms that were inconsistent with the Act, such as a term that allowed for the payment of less than the minimum penalty rates for certain types of work. The Commission concluded that, because of these defects, the agreement did not meet the criteria for approval under the Act.

Accordingly, the Commission refused to approve the agreement. The applicants were given an opportunity to remedy the defects identified by the Commission and to resubmit the agreement for approval. The Commission noted that, if the applicants were able to remedy the defects, the agreement would be approved as a registered agreement under the Act. The Commission emphasised that it was important for workplace agreements to comply with the requirements of the Act in order to ensure that employees were protected and that their rights were not compromised.

Master Builders Northern Territory Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established