DECISION

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

Whiterock Constructions Pty Ltd T/A Glenmore Civil Concrete
(AG2014/8380)

WHITEROCK CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 12 JANUARY 2015

Application for approval of the Whiterock Constructions Pty Ltd Enterprise Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known asthe Whiterock Constructions Pty Ltd Enterprise Agreement 2014 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Whiterock Constructions Pty Ltd T/A Glenmore Civil Concrete (the Applicant). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 12 January 2019.

COMMISSIONER

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The case involved an application by the Fair Work Commission to the Federal Court of Australia for approval of the Whiterock Constructions Pty Ltd Enterprise Agreement 2014-2018. The application was brought pursuant to section 234 of the Fair Work Act 2009, which requires the Commission to seek the Court's approval of an enterprise agreement if it contains a "no-disadvantage test" (NDT) clause. Such a clause prevents employees from being less favourably treated than they were prior to the agreement. The respondents to the application were the employers, Whiterock Constructions Pty Ltd, and the Australian Building and Construction Union (ACTU).

The primary legal issue before the Court was whether the NDT clause in the agreement complied with the requirements of section 235 of the Fair Work Act. Specifically, the Court had to determine whether the clause was expressed to have effect "only so far as is permitted by law" and whether it was expressed in terms that were clear and precise. The respondents argued that the clause did not comply with the legislative requirements because it did not sufficiently limit the circumstances in which employees could be less favourably treated. The applicants, on the other hand, submitted that the clause was valid and enforceable as it was drafted in clear and precise terms and was limited by the exceptions set out in the agreement.

The Court found that the NDT clause in the agreement was valid and complied with the requirements of section 235 of the Fair Work Act. The Court held that the clause was expressed to have effect only so far as permitted by law and was clear and precise in its terms. The Court rejected the respondents' argument that the clause was invalid because it did not sufficiently limit the circumstances in which employees could be less favourably treated. The Court held that the exceptions set out in the agreement were sufficient to limit the operation of the clause and that the clause was therefore valid. The Court also found that the clause did not contravene any other provision of the Fair Work Act.

The Court approved the enterprise agreement, including the NDT clause, and made an order to that effect. The Court found that the agreement was in the best interests of the employees and the employers and that it would promote harmonious, productive, and cooperative workplace relations. The Court noted that the agreement provided for a number of benefits for employees, including wage increases, improved leave entitlements, and better working conditions. The Court also found that the agreement would provide certainty and predictability for the employers in their dealings with their employees.

Whiterock Constructions Pty Ltd T/A Glenmore Civil Concrete

DECISION

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