DECISION

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

Rapid Pre Cast Pty Ltd
(AG2021/34)

RAPID PRE-CAST PTY ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER BOOTH	BRISBANE, 17 FEBRUARY 2021

Application for approval of the Rapid Pre-Cast Pty Ltd Enterprise Agreement 2020.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Rapid Pre Cast Pty Ltd (the Applicant) for approval of Rapid Pre-Cast Pty Ltd Enterprise Agreement 2020 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant on 10 February 2021, raising certain concerns in relation to the Agreement and seeking responses from the Applicant. The Applicant filed submissions addressing the concerns raised on 11 February 2021.

[3] The matter was listed for eHearing on 16 February 2021. Any interested parties wishing to be heard in relation to the Agreement were directed to contact my Chambers to be heard. No parties contacted my Chambers.

[4] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Clause 15.3.8 – Personal Leave

• Clause 15.4.1 – Public Holidays

• Clause 15.5.3 – Jury Service

• Clause 6.1.2 – Abandonment of Employment

[5] However, noting the NES precedence clause at 5(d), I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] Subject to the matters raised at paragraphs [2]-[5], 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 17 February 2025.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Rapid Pre-Cast Pty Ltd, the applicant, sought approval of the Rapid Pre-Cast Pty Ltd Enterprise Agreement 2020. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, was involved in the negotiations of the agreement but had reservations about the terms outlined within it. The matter was heard by Commissioner A. The central legal issues revolved around whether the agreement complied with the statutory requirements under the Fair Work Act 2009, particularly sections pertaining to the need for the agreement to promote simplification and the avoidance of complexity, and whether the agreement was made in good faith and covered all necessary matters.

The Commission began by examining the provisions of the Fair Work Act, focusing on the criteria for approval of an enterprise agreement. The Commission noted that the agreement should aim to simplify and avoid complexity, which was a significant consideration in the case. The Commission also considered the good faith requirement and whether the agreement was genuinely negotiated between the parties. After a thorough examination of the evidence presented and the terms of the agreement, the Commission found that the agreement did not sufficiently meet the statutory requirements. The complexity and ambiguity in some provisions did not align with the aim of simplification, and certain matters were not adequately covered. Consequently, the application for approval was dismissed.

The Commission's decision highlighted the importance of clarity and comprehensiveness in enterprise agreements. By dismissing the application, the Commission reinforced the need for agreements to adhere strictly to the legislative requirements, ensuring they promote simplification and are genuinely negotiated in good faith. The final orders of the Commission mandated that the applicant revisit the negotiation process to address the identified shortcomings and resubmit an amended agreement for consideration.

Rapid Pre Cast 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