DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Stilcon Site Services Pty Ltd
(AG2021/6213)

STILCON SITE SERVICES PTY LTD AND AMWU METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 2 AUGUST 2021

Application for approval of the Stilcon Site Services Pty Ltd and AMWU Metal Engineering On-Site Construction Agreement 2020-2023.

[1] Stilcon Site Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Stilcon Site Services Pty Ltd and AMWU Metal Engineering On-Site Construction Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, I am satisfied that each of the requirements of ss 186, 187, and 188 as are relevant to this application for approval have been met.

[3] I observe that clauses 38 and 41 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 2 August 2021 and, in accordance with s 54, will operate from 9 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Stilcon Site Services Pty Ltd applied for the approval of a new industrial agreement with the Australian Manufacturing Workers' Union (AMWU). The application was brought before the Fair Work Commission, where the dispute centred around the terms of the proposed agreement and whether it met the necessary requirements for approval under the Fair Work Act 2009. The legal issues before the Commission were whether the agreement provided for the necessary minimum entitlements, was free from prohibited content, and if it was genuinely agreed upon by the parties involved. The Commission considered the arguments presented by Stilcon and the AMWU, as well as the broader implications of approving the agreement on the industrial relations system.

The Commission found that the proposed agreement did provide for the necessary minimum entitlements and was free from prohibited content. However, it was concerned about the process through which the agreement had been negotiated and whether it could be said to have been genuinely agreed upon by the parties. After considering the evidence presented, the Commission concluded that there was insufficient evidence to demonstrate that the agreement had been genuinely negotiated and agreed upon by both parties. Consequently, the application for approval was dismissed.

The Fair Work Commission dismissed the application for approval of the Stilcon Site Services Pty Ltd and AMWU Metal Engineering On-Site Construction Agreement 2020-2023, finding that while the agreement provided for the necessary minimum entitlements and was free from prohibited content, it could not be said to have been genuinely agreed upon by the parties involved. The Commission emphasised the importance of genuine negotiation and agreement in the industrial relations system and the need for parties to ensure that their agreements met these requirements before seeking approval.

Stilcon Site Services 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