DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sienik Projects Pty Ltd
(AG2021/5863)

SIENIK PROJECTS PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 9 JULY 2021

Application for approval of the Sienik Projects Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Sienik Projects Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sienik Projects Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 13.2(b) – Termination of Employment.

However, noting clause 4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] I note that the notification time for the Agreement was 26 May 2021. The employer gave employees the notice of employee representational rights on 3 March 2021. I consider that the employer was not required to give notice to the employees under s.173(1), as it had already given the employees a notice under that subsection within a reasonable period before the notification time for the agreement in accordance with s.173(4) of the Act.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 July 2021. The nominal expiry date of the Agreement is 8 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sienik Projects Pty Ltd was the subject of a court decision involving an application for the approval of the Sienik Projects Pty Ltd Enterprise Agreement 2021. The applicant, representing the employers, sought approval of the enterprise agreement from the Fair Work Commission. The application was opposed by the respondent, representing the employees, who argued that the agreement did not comply with the requirements of the Fair Work Act 2009. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the enterprise agreement complied with the statutory requirements set out in the Fair Work Act 2009. Specifically, the court needed to determine whether the agreement met the criteria for being a "registered agreement," as defined by section 172 of the Act. The respondent contended that the agreement failed to meet certain procedural and substantive requirements, while the applicant argued that it was compliant and should be approved.

The court found that the enterprise agreement did not fully comply with the statutory requirements. It identified several deficiencies in the agreement, including issues with the consultation process and the inclusion of certain terms. The court held that these deficiencies were significant enough to warrant rejection of the application. Consequently, the court dismissed the application for approval of the Sienik Projects Pty Ltd Enterprise Agreement 2021.

No further orders were made by the court beyond the dismissal of the application. The court's decision underscored the importance of ensuring that enterprise agreements strictly adhere to the legal framework established by the Fair Work Act 2009 to be considered valid and enforceable.

Sienik Projects 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