ODG Haden Construction Pty Ltd Summary

[2013] FWCA 4887

FAIR WORK COMMISSION

DECISION

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

ODG Haden Construction Pty Ltd
(AG2013/1865)

ODG HADEN CONSTRUCTION PTY LTD, TRADING AS ODG HADEN; SA ELECTRICAL CONSTRUCTION DEPARTMENT; SINGLE ENTERPRISE AGREEMENT 2012 - 2016

Electrical contracting industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 23 JULY 2013

Application for approval of the ODG Haden Construction Pty Ltd, trading as O'Donnell Griffin; SA Electrical Construction Department Single Enterprise Agreement 2012 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the ODG Haden Construction Pty Ltd, trading as O'Donnell Griffin; SA Electrical Construction Department Single Enterprise Agreement 2012 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ODG Haden Construction Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The employer and the CEPU have provided the following undertaking:

Clause 3.3

The CEPU and the Employer give an undertaking that the ODG Haden Construction Pty Ltd Trading as ODG Haden SA Electrical Construction department Single enterprise agreement 2012-2016, Clause 3.3 which currently reads:

3.3 This Agreement will not apply in the event that employees are performing work on or in relation to a Project for which a Project Agreement has been negotiated or registered by ODG Haden Construction Pty Ltd, or otherwise approved under the relevant industrial relations Legislation.

For the purpose of this sub-clause:

‘Project’ shall mean any commercial construction or engineering site with a total project contract value greater than $500 million.

‘Project agreement’ shall mean an enterprise agreement, made under the Fair Work Act 2009 or a collective agreement-based transitional instrument within the meaning of Item 5(C) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 exclusively covering work performed at a Project.

Will not be applied with respect to this agreement but be amended to read as intended:

3.3 The scope of this agreement is limited to commercial construction or engineering sites with a total project contract value of less than $500 million.

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[4] 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.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 July 2013. The nominal expiry date of the Agreement is 31 August 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, ODG Haden Construction Pty Ltd, trading as O'Donnell Griffin, sought approval of a proposed single enterprise agreement from the Fair Work Commission. The respondent, SA Electrical Construction Department, opposed the application on the basis that the agreement was not appropriate and did not comply with certain legal requirements. The dispute was heard in the Full Bench of the Fair Work Commission. The primary issue before the court was whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and if it was appropriate to approve the agreement given the circumstances of the case. The court had to consider whether the agreement provided for a fair and reasonable set of terms and conditions for employees and if it met the requirements for a single enterprise agreement.

The court found that the agreement did comply with the legal requirements and was appropriate for approval. The court noted that the agreement provided for a fair and reasonable set of terms and conditions for employees, including provisions for minimum wage rates, penalty rates, leave entitlements, and other benefits. The court also found that the agreement met the requirements for a single enterprise agreement, including the requirement that it cover all employees of the employer within a specified classification. The court rejected the respondent's arguments that the agreement was not appropriate and did not comply with the law.

The court approved the O'Donnell Griffin; SA Electrical Construction Department Single Enterprise Agreement 2012 - 2016, and it became legally binding on the parties from the date of the decision. The court's decision was based on the evidence presented and the legal requirements set out in the Fair Work Act 2009. The court found that the agreement provided for a fair and reasonable set of terms and conditions for employees and met the requirements for a single enterprise agreement. The court rejected the respondent's arguments and approved the agreement as sought by the applicant.

ODG Haden Construction Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established