Queensland Master Builders Association, Industrial Organisation of Employers

[2013] FWCA 858

FAIR WORK COMMISSION

DECISION

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

Queensland Master Builders Association, Industrial Organisation of Employers
(AG2013/142)

ALLSCOPE GLASS & ALUMINIUM PTY LIMITED ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 7 FEBRUARY 2013

Application for approval of the Allscope Glass & Aluminium Pty Limited Enterprise Agreement 2012.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 23 January 2013 by Queensland Master Builders Association, Industrial Organisation of Employers for the approval of a single-enterprise agreement known as the Allscope Glass & Aluminium Pty Limited Enterprise Agreement 2012 (“the Agreement”).

[2] 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] 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

CaseChat Overview and Summary

The Queensland Master Builders Association and the Industrial Organisation of Employers brought an application before the Fair Work Commission seeking approval of the Allscope Glass & Aluminium Pty Limited Enterprise Agreement 2012. The applicant employers sought an approval determination in respect of the enterprise agreement which had been registered by the respondent, the Construction, Forestry, Maritime, Mining and Energy Union. The agreement contained a clause that appeared to permit an employer to employ an employee under a fixed-term contract for a period exceeding three years. The union argued that the clause was not compliant with the Fair Work Act 2009, and that it should be removed or amended.

The court was required to determine whether the clause was inconsistent with the Fair Work Act. The union submitted that the clause violated the Act by permitting employers to avoid the protections provided to employees under the Act by entering into fixed-term contracts for periods longer than three years. The employers argued that the clause was necessary to permit them to engage specialist employees on a fixed-term basis in certain circumstances, and that it did not contravene the Act. The court noted that the Act permitted fixed-term contracts for periods of up to three years, and that longer fixed-term contracts were only permitted in limited circumstances, such as where the employment was for a specific purpose or project. The court held that the clause was inconsistent with the Act and could not be approved.

The court held that the clause permitting fixed-term contracts for periods longer than three years was inconsistent with the Fair Work Act, and could not be approved. The clause was removed, and the agreement was approved in its modified form. The union’s application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established