O'Leary Group

[2013] FWCA 8472

FAIR WORK COMMISSION

DECISION

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

O'Leary Group
(AG2013/9872)

O'LEARY GROUP ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 28 OCTOBER 2013

Application for approval of the O'Leary Group Enterprise Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 22 October 2013 by O’Leary Group for the approval of a single-enterprise agreement known as the O’Leary Group Enterprise Agreement 2013 (“the 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 will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the O'Leary Group, sought approval of the O'Leary Group Enterprise Agreement 2013 under the Fair Work Act 2009. The applicant argued that the agreement was a simple, fair and clear agreement, beneficial to both the employer and the employees. The respondents, represented by the Australian Building and Construction Employees and Builders Labourers Federation, contended that the agreement contained provisions that were unfair and did not adequately protect the employees.

The primary legal issue was whether the agreement met the requirements of section 232 of the Fair Work Act, which mandates that an enterprise agreement must be fair and beneficial to both parties, and that any provisions that are not fair and beneficial must be disregarded. The court had to determine whether the agreement was fair and beneficial, and if not, which provisions should be disregarded.

The Federal Circuit Court found that the agreement contained provisions that were not fair and beneficial to the employees, particularly regarding penalty rates. The court identified that the agreement reduced penalty rates for employees, which was not justified by the circumstances. The court disregarded these provisions and approved the agreement as modified, finding it to be fair and beneficial overall. The court noted the need for balance in enterprise agreements, acknowledging the legitimate interests of both employers and employees.

The final orders of the court approved the O'Leary Group Enterprise Agreement 2013, with the identified unfair provisions disregarded. This decision highlighted the importance of ensuring that enterprise agreements adequately protect the interests of employees, while also recognising the need for fair and reasonable agreements that can be beneficial to both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established