Ultratest Pty Ltd

[2014] FWCA 2140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ultratest Pty Ltd
(AG2014/652)

ULTRATEST PTY LTD ROY HILL AWU GREENFIELDS AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 4 APRIL 2014

Application for approval of the Ultratest Pty Ltd Roy Hill AWU Greenfields Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Ultratest Pty Ltd Roy Hill AWU Greenfields Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is three and a half years from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Ultratest Pty Ltd, sought approval of the Ultratest Pty Ltd Roy Hill AWU Greenfields Agreement 2014, which was to cover employees who were not members of the Australian Workers' Union (AWU). The dispute centred on the fairness and appropriateness of the terms of the agreement, particularly in relation to the provisions governing employee remuneration and conditions. The Commission was tasked with assessing whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement was a "better off overall test" (BOOT) agreement, meaning that it provided employees with terms and conditions that were no worse than those provided under the relevant award, and that there were genuine benefits to the employees. The Commission had to consider whether the agreement genuinely improved the terms and conditions for the employees covered by it, as required by section 233 of the Fair Work Act. Additionally, the Commission examined whether the agreement complied with the procedural requirements set out in the Act, including the need for genuine bargaining between the parties.

The Commission found that the agreement was a BOOT agreement as it did not disadvantage the employees in comparison to the relevant award and provided some genuine benefits. The Commission emphasised that the agreement included provisions for wage increases, improved leave entitlements, and other benefits that were not available under the award. The Commission was satisfied that the agreement had been the product of genuine bargaining, as evidenced by the negotiations and discussions between Ultratest Pty Ltd and the AWU. Consequently, the Commission approved the agreement under section 234 of the Fair Work Act.

The Fair Work Commission approved the Ultratest Pty Ltd Roy Hill AWU Greenfields Agreement 2014, finding it to be a BOOT agreement that provided genuine benefits to the employees and was the product of genuine bargaining. The Commission's decision was based on its assessment of the agreement's provisions and the evidence presented regarding the bargaining process. The approval of the agreement ensures that the employees covered by it will receive terms and conditions that are no worse than those provided under the relevant award, while also benefiting from the specific improvements outlined in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established