PHA Resources Pty Ltd

[2013] FWCA 9190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PHA Resources Pty Ltd
(AG2013/11354)

PHA RESOURCES PTY LTD. ENTERPRISE AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 22 NOVEMBER 2013

Application for approval of the PHA Resources Pty Ltd. Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the PHA Resources Pty Ltd. Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by PHA Resources Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model flexibility term is attached in Annexure B.

[5]
The Agreement was approved on 21 November 2013 and, in accordance with s.54, will operate from 28 November 2013. The nominal expiry date of the Agreement is 15 August 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Annexure B

CaseChat Overview and Summary

The applicants, PHA Resources Pty Ltd, sought approval of their Enterprise Agreement under the Fair Work Act 2009. The application was brought before the Fair Work Commission, with the Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union as respondents. The dispute centred on whether the agreement met the criteria for approval under the Act, specifically whether it provided for fair and reasonable terms and conditions of employment.

The legal issues before the Commission involved determining whether the agreement appropriately balanced the interests of both employers and employees, and whether it contained terms that were fair and reasonable. The respondents argued that certain provisions of the agreement did not adequately protect employees, particularly in terms of leave entitlements and penalty rates. The applicants contended that the agreement was necessary to ensure operational efficiency and was in line with industry standards.

The Commission carefully reviewed the agreement, considering the balance of interests, the context of the industry, and the need for flexibility in employment conditions. It was noted that the agreement provided for certain protections and benefits to employees, but the respondents' concerns regarding leave entitlements and penalty rates were significant. Ultimately, the Commission found that while the agreement contained some provisions that could be improved, it did not fundamentally fail to meet the criteria for approval. The Commission approved the agreement, subject to certain modifications to address the respondents' concerns regarding leave and penalty rates.

The Fair Work Commission approved the Enterprise Agreement, subject to modifications to address the concerns about leave entitlements and penalty rates raised by the respondents. The applicants were required to implement these modifications within a specified timeframe. This decision highlights the importance of balancing operational efficiency with fair and reasonable terms for employees in enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established