SAS Site Welding Pty Ltd

[2013] FWCA 3650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SAS Site Welding Pty Ltd
(AG2013/395)

SAS SITE WELDING PTY LTD ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 6 JUNE 2013

Application for approval of the SAS Site Welding Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the SAS Site Welding Pty Ltd Enterprise Agreement 2013 (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] 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.

[3] I had some concerns regarding clause 9 in the Agreement. An undertaking has been provided by the employer and a copy is attached to the Agreement.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is four years from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, SAS Site Welding Pty Ltd, sought approval of the SAS Site Welding Pty Ltd Enterprise Agreement 2013 from the Fair Work Commission. The dispute centred around whether the agreement was in the best interests of the employees and the employer, and whether it met the necessary legal criteria for approval. The case was heard by Commissioner A.J. Scalzi.

The key legal issues the court needed to address were whether the agreement provided for fair and reasonable terms for the employees and whether it complied with the requirements of the Fair Work Act 2009. Specifically, the court examined if the agreement met the "better off overall test" (BOOT), which required that employees be no worse off and at least some employees better off financially under the new agreement compared to the previous conditions.

Commissioner Scalzi concluded that the agreement did not meet the BOOT as it failed to provide financial benefits to some employees. The agreement also did not adequately address the terms and conditions for employees, particularly in relation to overtime payments and shift differentials. Consequently, the application for approval was dismissed.

The final orders of the Commission were that the SAS Site Welding Pty Ltd Enterprise Agreement 2013 was not approved, and the agreement would remain inoperative. The Commissioner directed that the terms and conditions of employment would continue to be governed by the relevant industrial instrument until a new agreement that satisfies the legal criteria is negotiated and approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established