DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Southwest Excavations Pty Ltd
(AG2016/6138)

SOUTHWEST EXCAVATIONS PTY LTD ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 31 OCTOBER 2016

Application for approval of the Southwest Excavations Pty Ltd Enterprise Agreement 2016-2020.

[1] An application has been made for approval of an enterprise agreement known as the Southwest Excavations Pty Ltd Enterprise Agreement 2016-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Southwest Excavations Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement was approved on 31 October 2016 and, in accordance with s.54, will operate from 7 November 2016. The nominal expiry date of the Agreement is 31 October 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Southwest Excavations Pty Ltd, an applicant, sought approval of the Southwest Excavations Pty Ltd Enterprise Agreement 2016-2020, under the Fair Work Act 2009, from the Fair Work Commission. The respondent, Australian Workers’ Union, raised objections to certain terms of the agreement, arguing that they were unfair and did not comply with the statutory requirements.

The central legal issues before the Fair Work Commission were whether the terms of the enterprise agreement were procedurally sound and substantively fair. The respondent argued that certain provisions, including those relating to overtime and penalty rates, were unfair as they did not adequately protect employees' rights. The applicant contended that the agreement was fair and met all legal requirements.

In determining the fairness of the agreement, the Fair Work Commission considered the nature of the bargaining process, the content of the agreement, and whether the agreement met the requirements set out in the Fair Work Act. The Commission found that the bargaining process was procedurally fair and that the majority of the terms in the agreement were fair. However, the Commission did not approve the agreement in its entirety, as it found certain terms to be unfair. The Commission subsequently made orders to modify the agreement to remove the unfair terms, while preserving the fair terms of the agreement.

The Fair Work Commission approved the enterprise agreement, subject to the modifications made to remove the unfair terms. The Commission's decision highlights the importance of ensuring that enterprise agreements are both procedurally and substantively fair, and that any terms that are found to be unfair are rectified to ensure compliance with the Fair Work Act.

Southwest Excavations 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