DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TOP Welding & Construction Pty Ltd
(AG2018/1028)

TOP WELDING AND CONSTRUCTION PTY LTD WORKSHOP ENTERPRISE AGREEMENT 2018-2022

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 22 JUNE 2018

Application for approval of the TOP Welding and Construction Pty Ltd Workshop Enterprise Agreement 2018-2022.

[1] An application has been made for approval of an enterprise agreement known as the TOP Welding and Construction Pty Ltd Workshop Enterprise Agreement 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TOP Welding & Construction Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 June 2018. The nominal expiry date of the Agreement is 21 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, TOP Welding & Construction Pty Ltd, applied to the Fair Work Commission for the approval of the TOP Welding and Construction Pty Ltd Workshop Enterprise Agreement 2018-2022. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union. The primary dispute centered around whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the union argued that certain provisions of the agreement were not consistent with the requirements for a modern award, including those related to pay rates, penalties, and procedural fairness.

The key legal issues before the Commission involved interpreting the provisions of the Fair Work Act and determining whether the proposed agreement satisfied the legal standards for approval. This included assessing whether the agreement provided for terms and conditions that were not less favourable than a relevant modern award, whether it contained appropriate provisions for resolving disputes, and whether it adhered to procedural fairness. The Commission also needed to consider whether the agreement met the 'better off overall test' and if it complied with the requirements of the 'good faith' bargaining provisions.

The Fair Work Commission found that the proposed agreement largely met the legislative requirements for approval. The Commission noted that the agreement provided for terms and conditions that were not less favourable than the relevant modern award and included provisions that met the 'better off overall test'. The Commission also found that the agreement contained adequate dispute resolution mechanisms and complied with procedural fairness requirements. While the union raised concerns about specific provisions, the Commission determined that these did not prevent the agreement from being approved. The Commission concluded that the agreement was consistent with the statutory requirements and granted the application for approval.

The final orders of the Commission were that the TOP Welding and Construction Pty Ltd Workshop Enterprise Agreement 2018-2022 be approved as a registered agreement under the Fair Work Act 2009, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the employees covered by the agreement.

TOP Welding & Construction 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