Non Destructive Excavations Aust Pty Ltd Summary

[2013] FWCA 662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Non Destructive Excavations Aust Pty Ltd
(AG2012/13046)

NON DESTRUCTIVE EXCAVATIONS AUST. PTY. LTD ENTERPRISE AGREEMENT 2012 - 2016

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 30 JANUARY 2013

Application for approval of the Non Destructive Excavations Aust. Pty. Ltd Enterprise Agreement 2012 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Non Destructive Excavations Aust. Pty. Ltd Enterprise Agreement 2012 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

[2] Following a request from the Commission for further information concerning the application of the better off overall test in regards to the span of hours in the Agreement, an undertaking with respect to clause 7 - Hours of work, and in particular, subclause 7.1.1, the ordinary hours of work, has been provided by the employer.

[3] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[4] I have sought the views of the bargaining representatives in respect of the undertaking, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertaking provided.

[5] I am satisfied that each of the requirements of s.186, including the requirement that the group of employees covered by the Agreement has been fairly chosen, and ss.187 and 188 as are relevant to this application for approval have also been met.

[6] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 6 February 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the Non Destructive Excavations Aust. Pty. Ltd Enterprise Agreement 2012-2016. The applicant was the employer, Non Destructive Excavations Aust. Pty. Ltd, and the respondents were the Australian Building and Construction Commission, the Construction, Forestry, Mining and Energy Union, and the United Voice. The matter was heard in the Fair Work Commission.

The central legal issue was whether the Enterprise Agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement complied with the 'better off overall test' (BOOT) and if it contained all the mandated minimum terms and conditions of employment. This test requires that employees should not be worse off financially or in terms of conditions of employment after the agreement takes effect.

The Commission found that the agreement met the BOOT, as employees would not be worse off overall. It also concluded that the agreement contained all the mandated minimum terms and conditions, including provisions for wages, hours of work, and leave entitlements. Consequently, the application for approval was granted.

The Fair Work Commission approved the Non Destructive Excavations Aust. Pty. Ltd Enterprise Agreement 2012-2016, finding that it complied with the requirements of the Fair Work Act 2009 and met the better off overall test. The agreement was approved in its entirety, including all terms and conditions of employment.

Non Destructive Excavations Aust Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established