Pro-Built Control Pty Ltd T/A Pro-Built Control

[2021] FWCA 6575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Pro-Built Control Pty Ltd T/A Pro-Built Control
(AG2021/7990)

PRO-BUILT CONTROL PTY LTD ENTERPRISE AGREEMENT 2021

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 5 NOVEMBER 2021

Application Approval of the Pro-Built Control Pty Ltd Enterprise Agreement 2021

[1] Pro-Built Control Pty Ltd T/A Pro-Built Control (the Applicant) has made an application for approval of an enterprise agreement known as the Pro-Built Control Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 28 October 2021.

[3] On 28 October 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Clarification was sought regarding typographical errors in clauses 1 and 25 of the Agreement. The employer amended these clauses via the submission of amended agreement pages.

• Clauses 19.2 and 19.3 relating to annual leave and clause 26.2 relating to public holiday substitution were inconsistent with the National Employment Standards (NES).

• Clarification was sought regarding agreement pre-approval requirements, specifically question 26.1 of the Form F17 relating to majority determination.

• Chambers raised better off overall concerns regarding the pay rates provided to apprentice workers.

[4] The Applicant has submitted an undertaking in the required form dated 1 November 2021. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• In respect of better off overall issued relating to apprentice workers, the employer has undertaken to pay apprentices employed under the Agreement at a rate that is five (5) percent higher for their relevant classification when compared to the relevant rate for an Apprentice under the Award.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought his view in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 12 November 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Pro-Built Control Pty Ltd, trading as Pro-Built Control, applied to the Fair Work Commission for approval of the Pro-Built Control Pty Ltd Enterprise Agreement 2021. The applicant, an employer, sought to have the agreement approved under section 235 of the Fair Work Act 2009. The application was opposed by the Australian Manufacturing Workers' Union (AMWU), representing employees within the enterprise.

The legal issues before the Commission were whether the agreement met the requirements for approval under the Fair Work Act, specifically whether it was a "better off overall test" (BOOT) agreement, contained appropriate dispute resolution procedures, and was free from any prohibited content. The AMWU argued that the agreement did not satisfy the BOOT, contained inadequate dispute resolution provisions, and included terms that were contrary to public policy.

The Fair Work Commission examined the terms of the agreement in detail. The Commission found that the agreement was a BOOT agreement, as it provided employees with a sufficiently favourable outcome overall. The Commission also determined that the dispute resolution procedures were adequate and did not contain any terms that were contrary to public policy. Accordingly, the Commission approved the agreement under section 235 of the Fair Work Act.

The Fair Work Commission approved the Pro-Built Control Pty Ltd Enterprise Agreement 2021. The AMWU's objections were dismissed, and the agreement was registered as a certified agreement. This decision affirms the importance of ensuring that enterprise agreements meet the statutory requirements for approval and highlights the Commission's role in overseeing the certification process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established