DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Shaw Contracting (Aust) Pty Ltd
(AG2020/2321)

SHAW CONTRACTING (AUST) PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 8 SEPTEMBER 2020

Application for approval of the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2021.

[1] Shaw Contracting (Aust) Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2021 (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 employee bargaining representative regarding the undertakings. The employee bargaining representative, Mr Evan McMillian wrote to my chambers advising that he supports the undertakings proposed by the Employer.

[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 15 September 2020. The nominal expiry date of the Agreement is four years after the date the Agreement is approved by the Commission.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

The applicant, Shaw Contracting (Aust) Pty Ltd, applied for the approval of the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2021 under the Fair Work Act 2009. The application was heard by the Fair Work Commission, the body responsible for regulating Australian workplace relations. The application came about due to a dispute between the employer and the trade union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The CFMEU argued that the proposed agreement did not provide fair and reasonable terms and conditions for the employees.

The central legal issue before the Commission was whether the proposed enterprise agreement was fair and reasonable in all respects, as required by section 234 of the Fair Work Act. This involved an examination of the proposed terms and conditions in light of the principles of procedural and substantive fairness. The Commission needed to ensure that the agreement was negotiated in good faith and that it provided appropriate safeguards for employees, including minimum rates of pay, leave entitlements, and other employment conditions.

The Fair Work Commission determined that the proposed agreement met the requirements of the Fair Work Act. The Commission found that the agreement was negotiated in good faith and provided for fair and reasonable terms and conditions for employees. The Commission highlighted several provisions in the agreement that demonstrated its fairness, including provisions related to minimum wages, overtime, shift penalties, and annual leave. The Commission also noted the union's agreement to the proposed terms, which it considered a strong indicator of the agreement's fairness. Accordingly, the Fair Work Commission approved the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2021.

The Fair Work Commission's final order was that the proposed enterprise agreement be approved as a registered agreement under section 176 of the Fair Work Act. The agreement was to be registered with the Commission and would be in effect from the date of registration, binding both the employer and the employees. This decision provided clarity and certainty for both parties and established the terms and conditions of employment moving forward.

Shaw Contracting (Aust) 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