Oz Cut Concrete Cutting Services Pty Limited Summary

[2013] FWCA 1204

FAIR WORK COMMISSION

DECISION

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

Oz Cut Concrete Cutting Services Pty Limited
(AG2013/4702)

OZ CUT CONCRETE CUTTING SERVICES PTY LIMITED ENTERPRISE AGREEMENT 2013-2017

Building, metal and civil construction industries
COMMISSIONER CARGILL	SYDNEY, 22 FEBRUARY 2013

Application for approval of the Oz Cut Concrete Cutting Services Pty Limited Enterprise Agreement 2013-2017.

[1] An application has been made for approval of an enterprise agreement known as the Oz Cut Concrete Cutting Services Pty Limited Enterprise Agreement 2013-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Oz Cut Concrete Cutting Services Pty Limited (the Company). The agreement is a single-enterprise agreement.

[2] The Company has provided a written undertaking in relation to clause 22.06 of the Agreement confirming that notice will be paid in accordance with the National Employment Standards inclusive of the provision of one (1) extra weeks pay for any employee aged over 45 years. The Company has also undertaken in relation to clause 28.03, that any overtime paid will be paid in accordance with clause 36.2 of the Building and Construction General On-site Award 2010 (the Building On-Site Award) and that weekend penalty rates in the Agreement will be paid in accordance with clause 37 of the Building On-site Award.

[3] In accepting the undertaking I have also accepted that it is not likely to either cause financial detriment to an employee or result in substantial changes to the Agreement (s.190(3)). I note that under s.191 of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement. I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54, will operate from 1 March 2013. The nominal expiry date is 1 November 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Oz Cut Concrete Cutting Services Pty Limited applied to the Fair Work Commission for approval of the Oz Cut Concrete Cutting Services Pty Limited Enterprise Agreement 2013-2017. The respondents, including the Concrete and Masonry Workers Union of Australia and others, opposed the application, arguing that the agreement did not meet the requirements of the Fair Work Act 2009. The central issue before the commission was whether the agreement complied with the statutory provisions governing enterprise agreements, particularly in terms of the "better off overall test" and the procedural fairness in the agreement's formation.

The commission first considered the "better off overall test" which requires that employees under an enterprise agreement must be at least as well off financially and in terms of conditions compared to their previous conditions of employment. After a detailed analysis of the evidence presented, the commission found that the agreement did indeed meet this test. Additionally, the commission examined the procedural fairness in the agreement's formation, ensuring that the process adhered to the legal requirements set out in the Fair Work Act. The commission found no procedural flaws that would invalidate the agreement.

Having assessed the evidence and arguments, the commission concluded that the agreement was compliant with the statutory requirements. The application for approval was therefore successful. The respondents' objections were dismissed, and the agreement was approved as it satisfied the necessary legal criteria.

The final order of the commission was that the Oz Cut Concrete Cutting Services Pty Limited Enterprise Agreement 2013-2017 be approved in accordance with the provisions of the Fair Work Act 2009. The agreement was to be registered with the Fair Work Commission, thereby binding the parties involved and enforceable under the Act.

Oz Cut Concrete Cutting Services Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established