S & S Construction Art Pty Ltd
[2011] FWA 3547
•6 JUNE 2011
[2011] FWA 3547 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
S & S Construction Art Pty Ltd
(AG2011/459)
Building, metal and civil construction industries | |
COMMISSIONER RYAN | MELBOURNE, 6 JUNE 2011 |
S & S Construction Art Pty. Ltd. Enterprise Agreement 2011 - 2015.
[1] Application was made by S & S Construction Art Pty Ltd (the Applicant) on 14 March 2011 for approval of the S & S Construction Art Pty. Ltd. Enterprise Agreement 2011 - 2015 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act).
[2] I had a number of concerns that the Agreement did not meet the requirements of sections 186 and 187 and I referred the Applicant’s representative, Master Builders Association of New South Wales (MBANSW), to my statement in the Hyatt Ground Engineering Pty Ltd matter 1 as many, but not all, of those concerns equally apply to this application.
[3] The MBANSW filed a comprehensive response on 28 April 2011 which included a series of undertaking which the Applicant was prepared to give to FWA to satisfy the concerns raised.
[4] On further examination of the Agreement I identified additional concerns. By letter dated 3 May 2011 I conveyed these additional concerns to the MBANSW.
[5] On 13 May 2011 the MBANSW filed a detailed response to the concerns raised in my letter of 3 May 2011 and the Applicant provided information through a signed statement from a Director of the Applicant. The response included a number of undertakings which the Applicant was prepared to give to FWA to satisfy the concerns raised.
[6] On the basis of the undertakings offered I am satisfied that the combination of the two sets of undertakings proposed by the Applicant address my concerns in relation to the enterprise agreement.
[7] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met, if the undertakings are accepted.
[8] In this matter I have carefully considered the number of undertakings offered and the effect of each of them.
[9] Section 190 of the Act provides a specific mechanism to enable FWA to approve enterprise agreements which would otherwise have to be refused approval because the enterprise agreement does not meet the requirements of s 186 or s 187. However within s190 is a very specific limitation on FWA’s capacity to accept undertakings. That limitation is found in s.190(3) which provides:
Undertakings
190(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
[10] If either of the elements of s.190(3) are met then FWA is prohibited from exercising the discretion otherwise granted to it under s.190 to accept undertakings from the employer.
[11] In the present matter I am only concerned with s.190(3)(b) of the Act.
[12] I adopt my reasoning in my decision of 6 June 2011 in the application by Hyatt Ground Engineering Pty Ltd, [2011] FWA 3257, in relation to the proper approach to s.190(3) of the Act.
[13] I conclude that the effect of accepting the undertakings offered by the employer in this matter is likely to result in substantial changes to the enterprise agreement.
[14] Therefore I must not accept the undertakings and thus the concerns I have that the agreement does not meet the requirements of s.186 and 187 remain.
[15] I am required therefore to refuse to approve the enterprise agreement.
COMMISSIONER
1 [2011] FWA 2293 PR508438
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