Southern Cross Electrical Engineering Limited

[2013] FWCA 4538

FAIR WORK COMMISSION

DECISION

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

Southern Cross Electrical Engineering Limited
(AG2013/1786)

SCEE CURTIS ISLAND GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 JULY 2013

Application for approval of the SCEE Curtis Island Greenfields Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 2 July 2013 by Southern Cross Electrical Engineering Limited for the approval of a Greenfields agreement known as the SCEE Curtis Island Greenfields Agreement 2013(“the Agreement”).

[2] Statutory declarations were provided by:

Mr B. Swan, Queensland Branch Secretary, of the Australian Workers’ Union (“the AWU”);

Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”); and

Mr P. Ong, Deputy Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”).

[1] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the AWU, AMWU and CEPU are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[2] 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.

[3] 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 case of Southern Cross Electrical Engineering Limited, the applicants sought approval of the SCEE Curtis Island Greenfields Agreement 2013, from the Fair Work Commission. The agreement, proposed by the applicants, aimed to establish terms and conditions for their employees working at the Curtis Island Greenfields site. The respondents, who were the employees, contested certain provisions of the agreement, particularly those relating to casual employment conditions. The matter was brought before the Fair Work Commission to determine the validity and enforceability of the agreement.

The legal issues before the Fair Work Commission centred on whether the provisions of the agreement concerning casual employment were consistent with the applicable provisions of the Fair Work Act 2009. The respondents argued that some of the terms in the agreement were harsher than those provided by the applicable modern award, thereby contravening section 235 of the Fair Work Act. The applicants, on the other hand, contended that the provisions of the agreement were necessary to accommodate the operational requirements of the business and were in the best interest of the employees.

The Fair Work Commission, after reviewing the submissions and the relevant legal framework, found that certain provisions of the agreement did not comply with the Fair Work Act. Specifically, the commission held that the agreement failed to provide adequate notice periods and penalty rates for shift work, which were more stringent than the requirements of the applicable modern award. Consequently, the commission did not approve the agreement in its entirety, instead, it modified certain provisions to align with the award provisions. The applicants were directed to implement the modified agreement, which was now consistent with the Fair Work Act.

The Fair Work Commission's decision underscores the importance of ensuring that enterprise agreements comply with the applicable legal standards. Employers must carefully consider the implications of their proposed terms and conditions, particularly when seeking to deviate from the provisions of a modern award. The decision also highlights the role of the Fair Work Commission in overseeing and regulating the enforcement of enterprise agreements to protect the interests of both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established