The Australian Workers' Union

[2013] FWCA 8302

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
(AG2013/10778)

FRESHMORE (NSW) PTY LTD T/AS ADVANCED PRECAST (AUST) SYDNEY, NEW SOUTH WALES AND THE AWU ENTERPRISE AGREEMENT 2013

Cement and concrete products
COMMISSIONER RIORDAN	SYDNEY, 23 OCTOBER 2013

Application for approval of the Freshmore (NSW) Pty Ltd t/as Advanced Precast (Aust) Sydney, New South Wales and the AWU Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known asthe Freshmore (NSW) Pty Ltd t/as Advanced Precast (Aust) Sydney, New South Wales and the AWU Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Australian Workers’ Union (the Applicant). 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 relevant to this application for approval have been met.

[3] The Australian Workers’ Union (the Union) has given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] 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 of the Agreement is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union applied to the Fair Work Commission for approval of the Freshmore (NSW) Pty Ltd t/as Advanced Precast (Aust) Sydney, New South Wales and the AWU Enterprise Agreement 2013. Freshmore (NSW) Pty Ltd did not oppose the application, but the Australian Building and Construction Commission argued that the agreement should not be approved because it did not adequately address the risk of sham contracting. The Fair Work Commission was required to determine whether the agreement should be approved, considering the arguments presented by the parties.

The Commission first considered the purpose of the Fair Work Act, which aims to create a fair work system that promotes productivity, economic prosperity, and social inclusion. The Commission also considered the principles of enterprise bargaining, which require agreements to be made in good faith and to provide for the efficient and productive operation of the enterprise. The Commission found that the agreement was made in good faith and provided for the efficient and productive operation of the enterprise. The Commission also found that the agreement included provisions to address the risk of sham contracting, such as a definition of "employee" and a clause requiring employees to be paid the same wages and conditions as those set out in the agreement.

The Commission concluded that the agreement should be approved because it met the requirements of the Fair Work Act and provided for the fair and efficient operation of the enterprise. The Commission noted that while there may be some concerns about the risk of sham contracting, these concerns did not outweigh the benefits of the agreement. The Commission also noted that the agreement provided for ongoing monitoring and review to ensure that the risk of sham contracting was adequately addressed.

The Fair Work Commission approved the Freshmore (NSW) Pty Ltd t/as Advanced Precast (Aust) Sydney, New South Wales and the AWU Enterprise Agreement 2013. The Commission ordered that the agreement be registered and that it would have effect from the date of registration. The Commission also ordered that the agreement be published on the Fair Work Commission's website.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established