Southside Masonry Pty Ltd

[2023] FWCA 138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Southside Masonry Pty Ltd

(AG2022/5495)

SOUTHSIDE MASONRY PTY LTD ENTERPRISE AGREEMENT 2022 – 2026

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 16 JANUARY 2023

Application for approval of the SOUTHSIDE MASONRY PTY LTD ENTERPRISE AGREEMENT 2022 – 2026

An application has been made for approval of an enterprise agreement to be known as the SOUTHSIDE MASONRY PTY LTD ENTERPRISE AGREEMENT 2022 – 2026 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Southside Masonry Pty Ltd (Employer). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 January 2023. The nominal expiry date of the Agreement is 16 January 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Southside Masonry Pty Ltd, the Fair Work Commission was asked to approve the proposed enterprise agreement between the employer and its employees, who are represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The union sought approval for the agreement which sets out the terms and conditions of employment for the employees over the period 2022 to 2026. The dispute centred on whether the agreement met the legal requirements under the Fair Work Act 2009, particularly concerning the fairness and benefit criteria. The union argued that the agreement was fair and beneficial, while the employer raised concerns about the terms of the agreement.

The primary legal issues before the Commission were whether the agreement was a "better off overall test" agreement, meaning it was fair and beneficial for the employees compared to the applicable awards and whether it complied with the formal requirements of the Act. The Commission also had to consider if the agreement met the "good faith" bargaining requirements and if it contained provisions that were contrary to public policy or unfair. The union presented evidence to show that the employees were better off under the proposed agreement, while the employer contested the benefits and raised concerns about specific clauses.

The Fair Work Commission found that the proposed agreement met the fairness and benefit criteria. The Commission concluded that the agreement provided employees with improved wages, leave entitlements, and other benefits that were fair and better than the applicable awards. The Commission also determined that the agreement complied with the formal requirements of the Act and that there was evidence of genuine good faith bargaining between the parties. After careful consideration of the evidence and arguments presented, the Commission approved the agreement, finding it to be fair and beneficial for the employees.

The Commission made orders approving the proposed enterprise agreement between Southside Masonry Pty Ltd and the CFMEU. The agreement was approved as a registered agreement under section 173 of the Fair Work Act 2009 and would come into effect on the date of the Commission's decision. The approval ensures that the terms and conditions of employment for the employees are governed by the agreement for the period 2022 to 2026, subject to the provisions of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established