Ulex Constructions Pty Ltd Summary

[2023] FWCA 2511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ulex Constructions Pty Ltd

(AG2023/2331)

ULEX CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT 2023 - 2027

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 10 AUGUST 2023

Application for approval of the Ulex Constructions Pty Ltd Enterprise Agreement 2023 - 2027

An application has been made for approval of an enterprise agreement known as the Ulex Constructions Pty Ltd Enterprise Agreement 2023 - 2027 (Agreement). The application was made by Ulex Constructions Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5(e) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 August 2023. The nominal expiry date of the Agreement is 10 August 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Ulex Constructions Pty Ltd Enterprise Agreement 2023-2027. The application was brought by Ulex Constructions Pty Ltd, an employer, seeking the commission's approval of the proposed enterprise agreement with its employees. The nature of the dispute was to ensure that the agreement complied with the requirements of the Fair Work Act 2009, including fairness and the avoidance of underpayment of employees.

The primary legal issue before the commission was whether the proposed enterprise agreement met the necessary standards of procedural and substantive fairness as required by the Fair Work Act. This involved examining whether the agreement was genuinely negotiated between the parties, whether it addressed the employees' rights and obligations, and whether it ensured fair remuneration and conditions. The commission also had to assess if the agreement was consistent with the principles of the National Employment Standards and other relevant provisions of the Act.

In delivering its decision, the commission considered the evidence provided by both parties regarding the negotiation process and the content of the agreement. It was satisfied that the agreement had been genuinely negotiated and that it provided for fair and reasonable terms and conditions for the employees. The commission found that the agreement met the requirements of procedural and substantive fairness, and it did not identify any provisions that would lead to underpayment or unfair treatment of employees. As a result, the commission approved the Ulex Constructions Pty Ltd Enterprise Agreement 2023-2027, finding it to be in compliance with the relevant legislative requirements.

The final orders of the commission were that the Ulex Constructions Pty Ltd Enterprise Agreement 2023-2027 be approved as a registered agreement under the Fair Work Act. The agreement was to be registered with the commission, and it would come into effect from the date of registration, replacing any previous agreements in place between the parties. The commission's approval ensured that the agreement would provide a fair and legally compliant framework for the employer and employees to follow during the term of the agreement.

Ulex Constructions Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established