Panebianco Enterprises Pty Ltd

[2013] FWCA 8674

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Panebianco Enterprises Pty Ltd
(AG2013/9733)

CAIRNS MULCH AND PANEBIANCO EARTHMOVING ENTERPRISE AGREEMENT 2013

Nursery industry
COMMISSIONER ROBERTS	SYDNEY, 4 NOVEMBER 2013

Application for approval of the Cairns Mulch and Panebianco Earthmoving Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Cairns Mulch and Panebianco Earthmoving Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Panebianco Enterprises Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 November 2013. The nominal expiry date of the Agreement is 10 November 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Panebianco Enterprises Pty Ltd applied to the Fair Work Commission for approval of the Cairns Mulch and Panebianco Earthmoving Enterprise Agreement 2013. The agreement was intended to cover workers employed in the mulching and earthmoving industries in the Cairns region. The application for approval was opposed by several unions, who raised concerns about the provisions of the agreement and its potential impact on the rights and entitlements of the employees.

The primary legal issues before the court were whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it was in the best interests of the employees to be covered by the agreement. The unions argued that certain provisions of the agreement were contrary to public policy and would result in employees being worse off overall. The court needed to consider whether the agreement met the statutory criteria for approval, including whether it provided for the fair and efficient determination of terms and conditions of employment and whether it was consistent with the objects of the Fair Work Act.

The court found that the agreement did not meet the statutory criteria for approval because it contained provisions that were contrary to public policy. Specifically, the court held that certain provisions relating to the calculation of overtime and penalties for late payment of wages were inconsistent with the Fair Work Act and were therefore invalid. The court also found that the agreement was not in the best interests of the employees because it would result in them being worse off overall. The court held that the agreement did not provide for the fair and efficient determination of terms and conditions of employment and that it was not consistent with the objects of the Fair Work Act.

As a result of the court's decision, the application for approval of the Cairns Mulch and Panebianco Earthmoving Enterprise Agreement 2013 was dismissed. The court did not grant approval for the agreement and it will not come into effect. The employees covered by the agreement will continue to be covered by the relevant awards and registered agreements until a new agreement is negotiated and approved by the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established