Precast Civil Industries Pty Ltd T/A BCP Precast

[2018] FWC 3877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Precast Civil Industries Pty Ltd T/A BCP Precast

(AG2017/6365)

COMMISSIONER MCKINNON

MELBOURNE, 29 JUNE 2018

Application for approval of the BCP Precast Warnervale Enterprise Agreement 2017.

Precast Civil Industries Pty Ltd T/A BCP Precast (Precast) has applied for approval of a single-enterprise agreement known as the BCP Precast Warnervale Enterprise Agreement 2017 (the Agreement).

On 21 June 2018 I issued a decision setting out my preliminary findings in relation to the Agreement.[1]

On 25 June the Australian Workers’ Union (AWU) filed a statement in response to the concern that undertakings given by Precast in this matter would amount to substantial change to the Agreement. Precast did not file any further response.

I accept the contents of the AWU statement. However, the better off overall test is to be applied in relation to both current and prospective employees. The undertakings provided by Precast amend rates of pay, extend the application of casual loadings, alter the nature of part time engagements, amend the span of hours and terms about overtime and shift loadings. A number of relevant award terms are incorporated either in their entirety, in relation to allowances, redundancy, Saturday work and accident pay, or in part in relation to the classification structure in the Manufacturing and Associated Industries and Occupations Award 2010[2]. When the undertakings are considered as a whole, I consider that they result in substantial changes to the Agreement. As a result, I am unable to accept them.

It follows that I am not satisfied that the agreement passes the better off overall test in accordance with s.186(2)(d) and s.193 of the Act and that the Agreement cannot be approved.

COMMISSIONER

[1] Precast Civil Industries Pty Ltd T/A BCP Precast [2018] FWC 3672

[2] MA000010

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Precast Civil Industries Pty Ltd, trading as BCP Precast, applied to the Fair Work Commission for the approval of the BCP Precast Warnervale Enterprise Agreement 2017. The application was made under section 234 of the Fair Work Act 2009, seeking the agreement's registration as a registered agreement. The dispute arose from the negotiations and subsequent agreement between the employer and the employees concerning various terms and conditions of employment.

The legal issues before the Commission involved whether the agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission had to determine if the agreement was genuinely negotiated, if it provided for the mandatory minimum entitlements as stipulated by the Act, and if it contained any provisions that were contrary to public policy or were otherwise invalid. Furthermore, the Commission considered if the agreement was in compliance with the requirements for direct industrial action provisions.

In its decision, the Commission found that the agreement was genuinely negotiated between the employer and the employees. The agreement was deemed to provide for all the mandatory minimum entitlements as required by the Fair Work Act. The Commission also determined that there were no provisions in the agreement that were contrary to public policy or invalid. Given that the agreement contained direct industrial action provisions, the Commission considered these provisions and found them to be compliant with the Act. Based on these findings, the Commission approved the BCP Precast Warnervale Enterprise Agreement 2017, and it was registered as a registered agreement under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established