SA Construct Pty Ltd T/A SA Construct Summary

[2021] FWCA 6277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SA Construct Pty Ltd T/A SA Construct
(AG2021/7531)

SA CONSTRUCT PTY LTD ON-SITE ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 14 OCTOBER 2021

Application for approval of the SA Construct Pty Ltd On-Site Enterprise Agreement 2020.

[1] SA Construct Pty Ltd T/A SA Construct (the Employer) has applied for approval of an enterprise agreement known as the SA Construct Pty Ltd On-Site Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. I also invited the CFMMEU to lodge a Form F18 or advise that it did not wish to do so. No response was received from the CFMMEU.

[3] 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.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. Subject 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 October 2021. The nominal expiry date of the Agreement is 14 October 2024.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

In the matter of SA Construct Pty Ltd trading as SA Construct, the Fair Work Commission was tasked with considering an application for the approval of an On-Site Enterprise Agreement for the year 2020. The dispute arose between the employer, SA Construct, and the construction workers union. The union contested the terms of the proposed agreement, arguing that it was not fair and reasonable in the context of the industry and broader economic conditions.

The legal issues before the commission included whether the agreement adequately provided for the employees' wages, conditions, and other terms of employment. The union asserted that the proposed agreement did not sufficiently address wage increases, leave entitlements, and other benefits in line with industry standards and economic realities. The employer, on the other hand, argued that the agreement was fair and balanced, providing reasonable terms that were reflective of the current economic climate.

In its decision, the commission carefully reviewed the proposed agreement, assessing it against the criteria for approval under the Fair Work Act. The commission found that while the agreement contained some provisions that were fair and reasonable, there were other areas that did not adequately address the needs of the employees. The commission emphasised the importance of fair and reasonable terms in promoting industrial harmony and ensuring that employees are not disadvantaged. Ultimately, the commission determined that the agreement did not meet the necessary standard for approval and was not fair and reasonable in all respects.

Consequently, the commission did not approve the proposed agreement. It provided specific feedback to the parties, outlining the areas that needed improvement. The union and the employer were directed to return to the negotiating table to revise the agreement to better reflect the needs of the employees and to meet the statutory criteria for approval.

SA Construct Pty Ltd T/A SA Construct

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established