Shaw Contracting Pty Ltd

[2013] FWCA 3618

FAIR WORK COMMISSION

DECISION

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

Shaw Contracting Pty Ltd
(AG2013/6191)

SHAW CONTRACTING PTY LTD ENTERPRISE AGREEMENT 2013

Northern Territory
COMMISSIONER CAMBRIDGE	SYDNEY, 5 JUNE 2013

Application for approval of the Shaw Contracting Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Shaw Contracting Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Shaw Contracting Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Darwin on 30 April 2013. The application included a Statutory Declaration of Jim Irvine made on behalf of the Employer and dated 30 April 2013, (the Declaration). The Declaration stated that the Agreement was made on 22 April 2013. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 16 May 2013, at which time Mr J Irvine appeared for the Employer. During the proceeding held on 16 May, the Fair Work Commission (the Commission) identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Mr Irvine provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 3 June 2013, from the Employer which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Consequently, I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 23 and a consultation term at clause 22.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. 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.

[9] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 12 June 2013. In accordance with clause 4 of the Agreement the nominal expiry date of the Agreement is 31 December 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Shaw Contracting Pty Ltd sought approval of an enterprise agreement, which had been the subject of negotiations between the company and the Construction, Forestry, Maritime, Mining and Energy Union. The dispute was heard by the Fair Work Commission (FWC). The central issue before the FWC was whether the proposed enterprise agreement was in the interests of the employees and complied with the Fair Work Act 2009. The agreement's provisions on pay rates, conditions of employment, and the classification of employees were scrutinised to determine if they met the criteria for approval under the Act.

The FWC examined whether the agreement provided for fair and reasonable terms, including adequate pay and conditions, and whether it was genuinely negotiated. The union argued that the proposed agreement did not adequately address employee concerns, particularly regarding pay rates and conditions. The company, on the other hand, contended that the agreement reflected a fair compromise and was in the best interests of the employees. After considering the evidence and submissions from both parties, the FWC found that the proposed agreement met the statutory requirements. The FWC concluded that the agreement provided for fair and reasonable terms and conditions of employment, and that it was genuinely negotiated between the parties. The FWC approved the enterprise agreement, finding it to be in the interests of the employees.

The FWC's decision to approve the Shaw Contracting Pty Ltd Enterprise Agreement 2013 provides clarity on the requirements for enterprise agreements under the Fair Work Act. The court's analysis of the agreement's provisions, including pay rates and conditions, demonstrates the importance of meeting the statutory criteria for approval. The decision serves as a reminder to employers and unions of the need to negotiate in good faith and to consider the interests of employees when drafting enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established