DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Prep Engineering and Welding Services Pty Ltd
(AG2014/10285)

PREP ENGINEERING AND WELDING SERVICES PTY LTD ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT SMITH	MELBOURNE, 4 FEBRUARY 2015

Application for approval of the Prep Engineering and Welding Services Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Prep Engineering and Welding Services Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Prep Engineering and Welding Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of 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.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from Prep Engineering and Welding Services Pty Ltd. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2015. The nominal expiry date of the Agreement is 3 February 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

CaseChat Overview and Summary

Prep Engineering and Welding Services Pty Ltd, the employer, sought approval of the Prep Engineering and Welding Services Pty Ltd Enterprise Agreement 2014 from the Fair Work Commission (FWC). The agreement aimed to regulate the terms and conditions of employment for workers who were subject to the agreement. The workers, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the approval on various grounds, including that the agreement did not provide adequate protections for employees.

The central legal issue was whether the agreement met the requirements for approval under the Fair Work Act 2009. The workers argued that the agreement failed to meet the 'better off overall test' (BOOT) as mandated by the Act. They contended that certain provisions of the agreement were less favourable than the applicable award or the general industrial relations law, thereby not ensuring that employees were at least as well off as they would be under the existing industrial instruments.

The FWC found that the agreement did not meet the BOOT. The tribunal held that the provisions relating to penalty rates and annual leave loading were less favourable than those provided for in the applicable award. The FWC also found that the agreement did not adequately protect employees' rights in relation to redundancy and termination. Consequently, the tribunal rejected the application for approval of the agreement. The FWC ordered that the application be dismissed and that the agreement not be approved.

Prep Engineering and Welding Services Pty Ltd

DECISION

ATTACHMENT A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established