Simon Masonry Pty Ltd

[2013] FWCA 426

FAIR WORK COMMISSION

DECISION

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

Simon Masonry Pty Ltd
(AG2012/13031)

SIMON MASONRY PTY LTD ENTERPRISE AGREEMENT 2012 - 2016

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 18 JANUARY 2013

Application for approval of the Simon Masonry Pty Ltd Enterprise Agreement 2012 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Simon Masonry Pty Ltd Enterprise Agreement 2012 - 2016 (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.

Undertakings

[2] An undertaking with respect to clause 7 - Hours of work, and in particular, subclause 7.1.1, the ordinary hours of work, has been provided by the employer.

[3] The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[4] I have sought the views of the bargaining representative in respect of the undertaking, pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertaking provided.

[5] I am satisfied that each of the requirements of s.186, including the requirement that the group of employees covered by the Agreement has been fairly chosen, and ss.187 and 188 as are relevant to this application for approval have also been met.

[6] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 25 January 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Simon Masonry Pty Ltd, sought approval of the Simon Masonry Pty Ltd Enterprise Agreement 2012-2016, which outlined terms and conditions of employment for employees in the masonry industry. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009. The applicants argued that the agreement was fair and reasonable, while objectors raised concerns about specific clauses regarding hours of work and penalty rates.

The central legal issue before the FWC was whether the enterprise agreement was procedurally and substantively compliant with the Fair Work Act. Procedurally, the FWC had to consider whether the agreement had been genuinely negotiated and whether the process adhered to the necessary standards. Substantively, the FWC had to assess whether the agreement provided fair and reasonable terms and conditions of employment, taking into account various factors, including the nature of the business and the need for flexibility and efficiency.

The FWC determined that the agreement had been genuinely negotiated and that the process complied with the procedural requirements of the Fair Work Act. Regarding the substantive fairness of the agreement, the FWC found that while some clauses raised concerns, the overall agreement provided fair and reasonable terms and conditions of employment. The FWC considered the nature of the masonry industry, the need for flexibility and efficiency, and the balance of interests between the applicants and employees. After making necessary modifications to address the objectors' concerns, the FWC approved the enterprise agreement.

The FWC approved the Simon Masonry Pty Ltd Enterprise Agreement 2012-2016, subject to the modifications made to address the objectors' concerns. The modifications included changes to the hours of work and penalty rate provisions to ensure that the agreement provided fair and reasonable terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established