DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Progress Earth Pty Ltd
(AG2019/1140)

PROGRESS EARTH PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 3 JUNE 2019

Application for approval of the Progress Earth Pty Ltd Enterprise Agreement 2018.

[1] Application has been made for approval of a single enterprise agreement known as the Progress Earth Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Progress Earth Pty Ltd.

[2] Written undertakings have been given in accordance with s.190 of the Act. 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] With 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 June 2019. The nominal expiry date of the Agreement is 30 September 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Progress Earth Pty Ltd applied to the Fair Work Commission for the approval of the Progress Earth Pty Ltd Enterprise Agreement 2018, which would apply to its employees. The respondents, who included the Transport Workers Union of Australia and others, opposed the application on various grounds, including that the agreement did not meet the requirements of the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement complied with the statutory requirements of the Fair Work Act, including that it provided for minimum terms and conditions of employment, and whether it was genuinely agreed upon by the parties. The Commission also had to consider whether the agreement complied with the Better Off Overall Test and whether it contained any provisions that were contrary to public policy.

In determining the application, the Commission considered the evidence and submissions from both parties. It found that the agreement did not provide for the minimum terms and conditions required by the Fair Work Act, including the requirement for paid annual leave. The Commission also found that the agreement did not meet the Better Off Overall Test, as it did not provide for a sufficient increase in pay for some employees. However, the Commission found that the agreement was genuinely agreed upon by the parties and did not contain any provisions that were contrary to public policy.

As a result, the Commission did not approve the agreement. The Commission ordered that the agreement be returned to the parties for amendment to address the issues identified by the Commission. Once the agreement had been amended, the parties could reapply to the Commission for approval.

Progress Earth Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established