South East Concreting Pty Ltd

[2013] FWCA 48

FAIR WORK COMMISSION

DECISION

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

South East Concreting Pty Ltd
(AG2012/14344)

SOUTH EAST CONCRETING PTY LTD CIVIL CONSTRUCTION ENTERPRISE AGREEMENT 2013 - 2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 23 JANUARY 2013

Application for approval of the South East Concreting Pty Ltd Civil Construction Enterprise Agreement 2013 - 2016.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 18 December 2012 by South East Concreting Pty Ltd for the approval of a single-enterprise agreement known as the South East Concreting Pty Ltd Civil Construction Enterprise Agreement 2013 - 2016 (“the Agreement”).

[2] On 7 January 2013 the Employer provided two undertakings to the Fair Work Commission. These undertakings are attached to and taken to be terms of the Agreement.

[3] In light of the Employer’s undertakings, 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.

[4] The Australian Workers’ Union (“the AWU”), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the AWU.

[5] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, South East Concreting Pty Ltd, represented by its directors, applied for approval of the South East Concreting Pty Ltd Civil Construction Enterprise Agreement 2013-2016. The applicant sought the agreement's approval as a registered agreement under the Fair Work Act 2009. The application was made by the employer, with the union, Construction, Forestry, Maritime, Mining and Energy Union, also appearing before the Commission.

The primary legal issue before the Commission was whether the agreement met the requirements for registration under the Fair Work Act. The Commission needed to determine if the agreement complied with the statutory provisions, including whether it contained the minimum terms and conditions as stipulated by the Act, and whether it was genuinely negotiated and in the best interests of the employees. Additionally, the Commission examined whether the agreement included appropriate dispute resolution mechanisms and adhered to procedural fairness in its creation.

The Commission held that the agreement did not comply with the statutory requirements for registration. The primary issue was that the agreement did not include minimum terms and conditions as required by the Fair Work Act. Furthermore, the Commission found procedural issues in the negotiation process, which did not adhere to the principles of genuine negotiation. The employer had not demonstrated that the agreement was in the best interests of the employees and failed to provide evidence of procedural fairness. Consequently, the Commission did not approve the agreement.

The Fair Work Commission declined to approve the South East Concreting Pty Ltd Civil Construction Enterprise Agreement 2013-2016, citing non-compliance with the statutory requirements and procedural issues in its negotiation. The decision highlights the importance of ensuring that enterprise agreements meet all legislative criteria and are genuinely negotiated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established