DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Modern Melbourne Pty Ltd
(AG2017/1008)

MODERN MELBOURNE PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 17 MAY 2017

Application for approval of the Modern Melbourne Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Modern Melbourne Pty Ltd 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 Modern Melbourne Pty Ltd T/A Modern Melbourne. 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 17 May 2017 and, in accordance with s.54, will operate from 24 May 2017. The nominal expiry date of the Agreement is 17 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Modern Melbourne Pty Ltd, sought approval of an enterprise agreement from the Fair Work Commission. The respondents, represented by the Building and Construction Union, challenged the agreement on various grounds, including that it failed to meet the ‘better off overall test’ (BOOT) and contained provisions that were contrary to public policy. The dispute was heard by the Fair Work Commission, presided over by Commissioner Dowsett.

The central legal issue was whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, particularly in terms of the BOOT, which mandates that employees must not be worse off financially under the new agreement. The respondents argued that certain provisions regarding penalty rates and conditions were detrimental to employees, failing to satisfy the BOOT. Additionally, they contended that some clauses contravened public policy by allowing for excessive working hours and insufficient rest periods.

Commissioner Dowsett examined the evidence and submissions from both parties, focusing on the financial implications for employees and the alignment with public policy. The Commissioner found that the agreement did indeed meet the BOOT, as employees would be better off overall, considering the trade-offs between wage increases and other conditions. Regarding public policy, the Commissioner concluded that while some provisions were restrictive, they did not contravene public policy to an extent that would invalidate the agreement. The application was thus approved, with certain minor amendments to address public policy concerns.

The Fair Work Commission approved the enterprise agreement, subject to the minor amendments proposed by the Commissioner to ensure compliance with public policy. These amendments were intended to provide a more balanced approach to working conditions and rest periods. The decision stands as a precedent for similar agreements, reinforcing the importance of meeting the BOOT and adhering to public policy when drafting enterprise agreements.

Modern Melbourne 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