Watpac Construction Pty Ltd

[2022] FWCA 2095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Watpac Construction Pty Ltd

(AG2022/1975)

BESIX Watpac / CFMEU South Australia Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MOLTONI	BRISBANE, 24 JUNE 2022

Application for approval of the BESIX Watpac / CFMEU South Australia Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the BESIX Watpac / CFMEU South Australia Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Watpac Construction Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

The Construction, Forestry, Maritime, Mining & Energy Union (CFMEU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CFMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 January 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Watpac Construction Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) South Australia. The agreement in question, titled BESIX Watpac/CFMEU South Australia Enterprise Agreement 2022, sought to formalise terms and conditions of employment between the parties. The application was contested by the CFMEU, which raised objections regarding several aspects of the proposed agreement.

The primary legal issues before the Fair Work Commission were whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement met the "better-off-overall test" (BOOT), which required that employees be no worse off financially and at least some employees better off financially under the proposed agreement compared to their previous conditions. The Commission also had to ensure that the agreement was fairly negotiated and did not contain any provisions that were contrary to public policy or in breach of any other legislative provisions.

The Fair Work Commission found that the proposed BESIX Watpac/CFMEU South Australia Enterprise Agreement 2022 met all necessary statutory requirements. The Commission confirmed that the agreement had been fairly negotiated and complied with the better-off-overall test, ensuring that employees were not worse off and at least some employees were better off. The Commission also found that the agreement did not contain any provisions contrary to public policy or in breach of any other legislative provisions. Consequently, the Commission approved the enterprise agreement.

The final orders of the Fair Work Commission were that the BESIX Watpac/CFMEU South Australia Enterprise Agreement 2022 be approved and registered, effective from the date of the decision. This approval ensures that the agreement becomes the new set of terms and conditions for employees covered by the agreement, replacing any previous conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established