DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Total Construction Pty Ltd
(AG2017/4831)

TOTAL CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 14 MARCH 2018

Application for approval of the Total Construction Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Total Construction Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Total 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 application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 March 2018. The nominal expiry date of the Agreement is 13 March 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Total Construction Pty Ltd applied for approval of the Total Construction Pty Ltd Enterprise Agreement 2017, which was put forward as a "greenfields" agreement. The Australian Building and Construction Commission opposed the application, arguing that the agreement contained provisions that were contrary to the public interest because they did not promote the objects of the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the provisions in question contravened the public interest test and, if so, whether the agreement could be approved with modifications.

The legal issues that the Commission had to decide were whether certain provisions in the enterprise agreement were contrary to the public interest and whether any contraventions could be rectified by modifying the agreement. The Commission considered whether the provisions in question were consistent with the objectives of the Fair Work Act, particularly in relation to promoting harmonious, productive, and cooperative workplace relations. The Commission also had to determine whether any modifications to the agreement would sufficiently address the contraventions to allow for approval.

The Fair Work Commission found that several provisions in the enterprise agreement were indeed contrary to the public interest. These provisions included aspects related to dispute resolution and redundancy. However, the Commission concluded that the contraventions could be remedied by modifying the agreement. After considering the submissions from both parties, the Commission approved the enterprise agreement with specific modifications to ensure compliance with the public interest. These modifications addressed the concerns related to dispute resolution and redundancy, ensuring that the agreement met the necessary standards under the Fair Work Act.

The final orders of the Fair Work Commission were that the Total Construction Pty Ltd Enterprise Agreement 2017 be approved, subject to the modifications made to rectify the contraventions of the public interest provisions. The Commission outlined the specific changes to the agreement, ensuring that the modified agreement complied with the legislative requirements and protected the public interest.

Total 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