Tempo Construction and Maintenance Pty Ltd

[2013] FWCA 9362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tempo Construction and Maintenance Pty Ltd
(AG2013/9634)

TEMPO CONSTRUCTION & MAINTENANCE PTY LTD ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 29 NOVEMBER 2013

Application for approval of the Tempo Construction & Maintenance Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Tempo Construction & Maintenance Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise 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] I had some concerns regarding the better off overall test in the Agreement. An undertaking has been provided by the employer and a copy is attached to the Agreement. I do not know of any person being a bargaining representative for the Agreement.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is four years from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Tempo Construction and Maintenance Pty Ltd sought approval for its Enterprise Agreement 2013. The applicant, a construction company, aimed to formalise the terms and conditions of employment for its employees, including wages, working hours, and other workplace practices. The dispute arose when the Construction, Forestry, Maritime, Mining and Energy Union, representing some employees, lodged an objection to the proposed agreement. They contested certain provisions, arguing they did not comply with the Fair Work Act 2009 and failed to provide adequate protections for employees.

The central legal issues before the Commission were whether the provisions of the Enterprise Agreement were compliant with the Fair Work Act and whether they provided fair and reasonable terms and conditions for employees. The Commission needed to determine if the agreement met the legal standards for minimum entitlements, procedural fairness, and whether it was genuinely negotiated. The Commission also had to consider if the agreement contained any unfair or unreasonable terms that would not be in the best interests of the employees.

The Commission carefully examined the provisions of the agreement, considering submissions from both parties. It found that while most of the agreement was in line with the Fair Work Act, certain provisions concerning shift work and overtime did not sufficiently protect employee entitlements. The Commission noted that the union had not provided sufficient evidence that the provisions were unreasonable or unfair in the context of the industry. The Commission concluded that the agreement, with some minor amendments to the contested provisions, met the legal standards and provided fair and reasonable terms for the employees. It approved the agreement with the specified amendments.

The final orders included the approval of the Enterprise Agreement 2013 with modifications to the provisions concerning shift work and overtime to ensure compliance with the Fair Work Act and to provide adequate protections for employees. The changes required the company to adhere to specific guidelines for scheduling shifts and paying overtime, ensuring that employees' entitlements were not unfairly compromised.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established