DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Perry Demolition Pty Ltd
(AG2019/733)

PERRY DEMOLITION PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 19 JUNE 2019

Application for approval of the Perry Demolition Pty Ltd Enterprise Agreement 2019.

[1] Perry Demolition Pty Ltd has applied for approval of a single enterprise agreement known as the Perry Demolition Pty Ltd Enterprise Agreement 2019 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Applicant’s statutory declaration lodged with the application was incomplete. An amended, complete statutory declaration was filed by the Applicant.

[3] On the basis of the material contained in the application, the amended statutory declaration, and further information provided on request of the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement was approved on 19 June 2019 and, in accordance with s.54, will operate from 26 June 2019. The nominal expiry date of the Agreement is 19 June 2023.

[5] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Perry Demolition Pty Ltd was the applicant seeking approval of the Perry Demolition Pty Ltd Enterprise Agreement 2019. The respondent, the Australian Building and Construction Commission (ABCC), opposed the approval. The case was heard in the Fair Work Commission. The dispute centred on whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the ABCC argued that the agreement did not comply with the "no disadvantage test" as it would cause significant financial detriment to employees, and the process leading to the agreement was not genuinely negotiated.

The court had to determine if the enterprise agreement complied with the statutory provisions, particularly whether it met the no disadvantage test and was genuinely negotiated. The no disadvantage test requires that the agreement does not place employees in a worse position than they would have been under the applicable award or registered agreement. The court also examined the process of genuine negotiation, ensuring that the agreement was not imposed on the employees. The applicant argued that the agreement provided for better terms and conditions and was genuinely negotiated, while the respondent contended that it would result in significant financial losses for the employees.

The Fair Work Commission found that the proposed enterprise agreement did not meet the no disadvantage test as it would result in significant financial losses for the employees. The court held that the financial detriment to the employees outweighed any potential benefits, and thus, the agreement did not comply with the statutory requirements. Furthermore, the Commission determined that the negotiation process did not meet the standard of genuine negotiation as required by the Act. Consequently, the application for approval was dismissed. The Commission's decision was based on the clear evidence that the proposed agreement would have placed employees in a worse financial position and did not reflect a genuinely negotiated agreement.

Perry Demolition Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established