DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Neesh Construction Pty Ltd
(AG2016/607)

NEESH CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 6 APRIL 2016

Application for approval of the Neesh Construction Pty Ltd Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Neesh Construction Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Neesh Construction Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Agreement was approved on 6 April 2016 and, in accordance with s.54, will operate from 13 April 2016. The nominal expiry date of the Agreement is 6 April 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Neesh Construction Pty Ltd sought approval of its Enterprise Agreement 2016, which was being contested by the Electrical Trades Union of Australia. The application was made to the Fair Work Commission, which was required to determine whether the agreement complied with the Fair Work Act 2009.

The central legal issue before the Commission was whether the Enterprise Agreement met the criteria for approval under the Fair Work Act. Specifically, the Commission needed to consider if the agreement provided for terms and conditions of employment that were no less favourable than the applicable award or safety net award. Additionally, the Commission had to assess if the agreement contained any unfair provisions that would render it unacceptable.

The Commission concluded that the Enterprise Agreement did not provide for terms and conditions of employment that were no less favourable than the applicable award or safety net award, as it contained provisions that were less favourable than those in the award. Consequently, the Commission found that the agreement did not meet the requirements for approval under the Fair Work Act. The Commission further determined that the agreement contained unfair provisions, including those related to redundancy payments and shift loading, which made the agreement unacceptable.

The Fair Work Commission dismissed the application for approval of the Enterprise Agreement, finding it did not meet the necessary criteria and contained unfair provisions.

Neesh Construction 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