Uprite Duct Installations Pty Ltd

[2010] FWA 10070

[2010] FWA 10070

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Uprite Duct Installations Pty Ltd
(AG2009/23781)

COMMISSIONER ASBURY BRISBANE, 24 DECEMBER 2010

Uprite Duct Installations Pty Ltd Enterprise Agreement 2009.

[1] This is an application under s. 185 of the Fair Work Act 2009 (the Act) for approval of the Upright Duct Installations Pty Ltd Enterprise Agreement 2009 (the Agreement).

[2] The relevant reference instrument nominated by the employer for the purposes of establishing whether the Agreement passes the no disadvantage test as required by s. 186(2)(d) of the Act, as modified by Part 2 of Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, is the Engineering Award - State (the Award).

[3] On 9 December 2010 I corresponded with the employer advising of a number of concerns in relation to whether the Agreement passed the no disadvantage test. Essentially those issues are that the Agreement over-rides classification definitions in the Award and does not contain any classification definitions to replace those that are over-ridden. Further, the Agreement does not contain any wage rates or other monetary amounts but simply incorporates all terms of the Award other than those specified.

[4] While the wages in the Award are not specified, and are therefore arguably incorporated in the Agreement, in the absence of the excluded Award classification definitions, and any definitions in the Agreement, it is impossible to determine that the Agreement passes the no-disadvantage test.

[5] The correspondence of 9 December requested a response from the employer to these matters within seven days. A response has not been received.

[6] Accordingly I am unable to approve the Agreement and the application is refused.

COMMISSIONER

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