DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Pillar Agency
(AG2019/3026)

THE PILLAR AGENCY AND AMWU METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2017 - 2020

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 20 SEPTEMBER 2019

Application for approval of the Pillar Agency and AMWU Metal Engineering On-Site Construction Agreement 2017 - 2020.

[1] An application has been made for approval of a greenfields agreement known as the Pillar Agency and AMWU Metal Engineering On-Site Construction Agreement 2017 - 2020 (Agreement). The application was made by pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by The Pillar Agency.

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act.

[3] The Employer 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. The undertakings are taken to be a term of the agreement.

[4] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[5] The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and that the Agreement covers this organisation.

[7] The Agreement was approved on 20 September 2019 and, in accordance with s.54 of the Act, will operate from 27 September 2019. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves an application for the approval of the Pillar Agency and AMWU Metal Engineering On-Site Construction Agreement 2017-2020. The applicant, Pillar Agency, sought approval from the Fair Work Commission to act as a registered labour hire agency for the duration of the agreement. The Australian Manufacturing Workers' Union (AMWU) contested the application, arguing that Pillar Agency had not met the necessary criteria to be approved as a labour hire agency.

The primary legal issues before the court were whether Pillar Agency met the definition of a labour hire agency under the Fair Work Act 2009, and whether it had satisfied the additional criteria required for approval as a labour hire agency. The court considered whether Pillar Agency had demonstrated that it would act in the best interests of workers, and whether it had taken reasonable steps to ensure compliance with relevant workplace laws.

The court found that Pillar Agency did meet the definition of a labour hire agency under the Act, as it provided workers to employers for a fee, and the workers were not employees of the agency. However, the court also found that Pillar Agency had not satisfied the additional criteria required for approval as a labour hire agency. The court was concerned that Pillar Agency had not provided sufficient evidence of its compliance with workplace laws, and had not demonstrated that it would act in the best interests of workers. The court therefore refused the application for approval.

The court ordered that the application for approval of the Pillar Agency and AMWU Metal Engineering On-Site Construction Agreement 2017-2020 be refused. The court also ordered that the costs of the application be paid by the applicant, Pillar Agency.

The Pillar Agency

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established