Polley's Earthmoving Pty Ltd

[2013] FWCA 2900

FAIR WORK COMMISSION

DECISION

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

Polley's Earthmoving Pty Ltd
(AG2013/1061)

POLLEY'S EARTHMOVING PTY LTD ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 20 MAY 2013

Application for approval of the Polley's Earthmoving Pty Ltd Enterprise Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 2 May 2013 by Polley’s Earthmoving Pty Ltd for the approval of a single-enterprise agreement known as the Polley’s Earthmoving Pty Ltd Enterprise Agreement 2013 (“the Agreement”).

[2] On 16 May 2013 the Employer provided 4 undertakings to the Fair Work Commission. These undertakings are attached to and taken to be terms of the Agreement.

[3] In light of the Employer’s undertakings, 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.

[4] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Polley's Earthmoving Pty Ltd sought approval of the Polley's Earthmoving Pty Ltd Enterprise Agreement 2013 before the Fair Work Commission (FWC). The enterprise agreement, which covered employees of Polley's Earthmoving Pty Ltd, was submitted for approval under the Fair Work Act 2009. The FWC was required to determine whether the agreement met the statutory criteria for approval, including that it facilitated the improved performance of the employer and provided for the appropriate resolution of workplace issues. The submission was opposed by the Construction, Forestry, Maritime, Mining and Energy Union, which argued that the agreement did not sufficiently provide for appropriate resolution of workplace issues.

The legal issues before the FWC included whether the agreement facilitated the improved performance of the employer, provided for the appropriate resolution of workplace issues, and otherwise met the criteria for approval under the Fair Work Act 2009. The FWC considered whether the agreement contained provisions that provided for the resolution of workplace issues in a manner that was fair and effective, and that did not disadvantage employees. The FWC also considered whether the agreement facilitated the improved performance of the employer, and whether it contained any terms that would have an adverse effect on employees' conditions.

The FWC found that the agreement did not sufficiently provide for the appropriate resolution of workplace issues, and did not meet the criteria for approval under the Fair Work Act 2009. The FWC noted that the agreement did not contain any provisions for the resolution of workplace issues, and that the parties had not demonstrated that the agreement facilitated the improved performance of the employer. The FWC also found that the agreement contained terms that would have an adverse effect on employees' conditions, including a reduction in leave entitlements and a limitation on the right to request flexible working arrangements.

The FWC did not approve the Polley's Earthmoving Pty Ltd Enterprise Agreement 2013. The FWC found that the agreement did not meet the statutory criteria for approval, and did not facilitate the improved performance of the employer or provide for the appropriate resolution of workplace issues. The FWC also found that the agreement contained terms that would have an adverse effect on employees' conditions. The FWC did not grant the application for approval of the enterprise agreement.

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