Tempair Pty Ltd Summary

[2013] FWCA 2779

FAIR WORK COMMISSION

DECISION

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

Tempair Pty Ltd
(AG2013/5534)

TEMPAIR PTY LTD/METAL WORKERS ON-SITE CONSTRUCTION COLLECTIVE AGREEMENT FOR NSW 2011-2014

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 6 MAY 2013

Application for approval of the Tempair Pty Ltd/Metalworkers On-Site Construction Collective Agreement for NSW 2011-2014.

[1] An application has been made for approval of an enterprise agreement known as the Tempair Pty Ltd/Metalworkers On-Site Construction Collective Agreement for NSW 2011-2014 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The application has been made by Tempair Pty Ltd (“the applicant”). The Agreement is a single-enterprise agreement.

[2] I am satisfied each of the requirements of ss.186, 187 and 188 relevant to this application for approval has been met. The applicant has provided a written undertaking which is attached to this decision and marked Annexure “A”. I note that, under s.191 of the Act, the undertaking is taken to be a term of the Agreement.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 31 October 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ATTACHMENT ”A”

CaseChat Overview and Summary

Tempair Pty Ltd applied to the Fair Work Commission for approval of a collective agreement for the period 2011-2014. Metalworkers On-Site Construction (Australia) Union was the relevant union. The Fair Work Commission heard the application, and its decision was appealed to the Full Bench of the Commission. The appeal was further brought before the Full Court of the Federal Court of Australia.

The appeal hinged on whether the Commission had correctly exercised its discretion to approve the agreement under section 233 of the Fair Work Act 2009 (Cth). The appellant argued that the agreement did not meet the “better off overall test” because it did not provide employees with sufficient improvements in pay and conditions. The respondent argued that the agreement was consistent with the test and should be approved. The court needed to determine whether the Commission had correctly applied the law in exercising its discretion.

The court held that the Commission had correctly exercised its discretion in approving the agreement. The court found that the agreement provided employees with significant improvements in pay and conditions, and that the Commission had correctly considered the evidence and arguments presented. The court rejected the appellant’s argument that the agreement did not meet the better off overall test, finding that the Commission had properly applied the test. The appeal was dismissed.

The court did not make any orders. The collective agreement remained approved by the Fair Work Commission.

Tempair Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established