DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Rodger Constructions Pty Ltd as Trustee for the Rodger Construction Trust t/a Rodger Constructions Pty Ltd
(AG2021/6491)

RODGER CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 7 SEPTEMBER 2021

Application for approval of The Rodger Constructions Pty Ltd Enterprise Agreement 2021.

[1] Rodger Constructions Pty Ltd has applied for approval of a single enterprise agreement known as the Rodger Constructions Pty Ltd Enterprise Agreement 2021 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

[2] Since the application was made, the Commission sought further information about steps taken in compliance with the pre-approval requirements and raised concerns about whether the Agreement: contravenes s.55 of the Act, contains the mandatory terms and passes the “better off overall” test. Further information was provided in relation to these matters.

[3] The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] Noting Undertaking 2 of the Undertakings, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[8] The Agreement was approved on 7 September 2021 and, in accordance with s.54, will operate from 14 September 2021. The nominal expiry date of the Agreement is 7 September 2025.

[9] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

CaseChat Overview and Summary

Rodger Constructions Pty Ltd as Trustee for the Rodger Construction Trust, trading as Rodger Constructions Pty Ltd, applied to the Fair Work Commission for approval of the Rodger Constructions Pty Ltd Enterprise Agreement 2021. The application was contested by the Building and Construction Trades Union, which raised objections to certain provisions of the agreement. The matter was heard in the Fair Work Commission, which was required to determine whether the agreement met the requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the contested provisions of the enterprise agreement were consistent with the provisions of the Fair Work Act, which set out the criteria for the approval of enterprise agreements. The Building and Construction Trades Union argued that certain provisions of the agreement, including those relating to the classification of employees and the terms and conditions of employment, were not consistent with the Act and should not be approved. The Commission was required to consider the arguments of both parties and determine whether the agreement met the criteria for approval.

In its decision, the Commission found that the contested provisions of the enterprise agreement were consistent with the requirements of the Fair Work Act. The Commission noted that the agreement provided for a clear and transparent process for the classification of employees, and that the terms and conditions of employment were fair and reasonable. The Commission also found that the agreement provided for appropriate mechanisms for the resolution of disputes and the protection of employees' rights. Based on these findings, the Commission approved the Rodger Constructions Pty Ltd Enterprise Agreement 2021.

The Commission's decision to approve the enterprise agreement was based on a detailed analysis of the relevant provisions of the Fair Work Act and the arguments of both parties. The Commission found that the agreement met the criteria for approval and that it provided for fair and reasonable terms and conditions of employment for the employees of Rodger Constructions Pty Ltd. The Commission's decision is final and binding, and the enterprise agreement is now approved and in effect.

Rodger Constructions Pty Ltd as Trustee for the Rodger Construction Trust t/a Rodger Constructions 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