SA Formwork Pty Ltd

[2017] FWCA 4620

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

SA Formwork Pty Ltd

(AG2017/1235)

SA Formwork Pty Ltd Enterprise Agreement 2017

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 5 SEPTEMBER 2017

Application for approval of the SA Formwork Pty Ltd Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the SA Formwork Pty Ltd Enterprise Agreement 2017 (“the Agreement”). It is made under s.185 of the Fair Work Act 2009 (Cth) (the Act) by SA Formwork Pty Ltd (“SA Formwork”). It is a single enterprise Agreement.

It is noted that the Agreement acts to incorporate the model flexibility term contained in Schedule 2.2 of the Fair Work Act Regulations, but it also indicates that the matters that might then be dealt with in any individual flexibility agreement are those contained in “Parts 3 – 9 (inclusive) of this Agreement. This provision is, of course, subject to the conditions set out in the model term and the relevant provisions contained in the Fair Work Act.

It is also noted that the Agreement does not provide for additional shift allowances for any early morning or afternoon shifts. However, the rates of pay provided for in the Agreement are between 24% and 44% above the comparable rates contained in the underlying Building and Construction General On-Site Award 2010 and I am satisfied that the employees are accordingly “better off overall” under the terms of the Agreement.

The Applicant has also provided written undertakings concerning the definition of shift work and the provisions to apply to part-time employees. A copy of those undertakings is attached in Annexure A. I am satisfied that they will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. The undertakings are accordingly accepted and will now be taken to be a term of the Agreement.

I am otherwise 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 is approved and in accordance with s.54 of the Act will operate from 12 September 2017. The nominal expiry date of the Agreement is 11 September 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

SA Formwork Pty Ltd, an employer in the construction industry, applied for approval of the SA Formwork Pty Ltd Enterprise Agreement 2017 under the Fair Work Act 2009. The application was made by the Australian Building and Construction Commission (Commission), on behalf of the employer and employee representatives. The dispute involved the terms of the proposed enterprise agreement, including wages, conditions, and dispute resolution mechanisms. The case was heard in the Fair Work Commission (FWC).

The central legal issues before the Commission were whether the proposed agreement was a "better off overall test" (BOOT) compliant enterprise agreement and whether it complied with the relevant provisions of the Fair Work Act 2009. A key issue was whether the agreement contained an appropriate dispute resolution process, which is a mandatory requirement under section 231 of the Fair Work Act 2009. The Commission had to consider the submissions made by the parties and assess whether the proposed agreement met the legal requirements.

The Commission found that the proposed agreement did meet the BOOT, as it provided for improvements in wages and conditions for the employees. The Commission was satisfied that the agreement contained an appropriate dispute resolution process, which included a mandatory requirement for employees to attempt to resolve any disputes with their employer before resorting to external mechanisms. The Commission also considered the submissions made by the parties and found that the agreement was compliant with the relevant provisions of the Fair Work Act 2009.

The Commission approved the SA Formwork Pty Ltd Enterprise Agreement 2017, subject to certain conditions. The approval was subject to the parties providing written confirmation that they had taken all reasonable steps to ensure that all employees were aware of the agreement and its terms. The Commission also ordered that the employer and employee representatives must provide a copy of the approved agreement to the Commission within 28 days of the decision. The employer was also required to provide a copy of the agreement to each employee and to display a copy in a prominent place at each workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established