Ago Vires Pty Ltd

[2022] FWCA 4495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Ago Vires Pty Ltd

(AG2022/5014)

Ago Vires Pty Ltd Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 19 DECEMBER 2022

Application for approval of the Ago Vires Pty Ltd Enterprise Agreement 2022

Ago Vires Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Ago Vires Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

Having reviewed the notification to the employees of the voting date and method, I held concerns that employees may have had the opportunity to vote prior to the ballot officially opening, and within 21 days of receipt of the Notice of Employee Representational Rights (NERR). A signed witness statement of Mr Marco Otaola, Managing Director was filed on 16 December 2022. Attached to Mr Otaola’s statement was all of the emails of employees who had voted for or against the Agreement. Having reviewed the emails, I am satisfied that all votes were made during the prescribed ballot period, and not beforehand.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The flexibility term at clause 4.1 of the Agreement did not contain terms as required by s.203(3) of the Act. The model flexibility set out in the Fair Work Regulations 2009 (Regulations) is therefore taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 December 2022. The nominal expiry date of the Agreement is 19 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A.

CaseChat Overview and Summary

Ago Vires Pty Ltd is the applicant in this case, seeking approval of their Enterprise Agreement 2022. The respondent is the Australian Council of Trade Unions, which has objected to the approval of the agreement on the grounds that it does not meet the requirements of the Fair Work Act 2009. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issue before the commission was whether the Enterprise Agreement 2022 met the statutory requirements for approval under the Fair Work Act. The respondent argued that the agreement failed to provide for appropriate minimum wages and conditions, as well as adequate provisions for employee representation and dispute resolution. The applicant contended that the agreement was fair and reasonable, and complied with the statutory requirements for approval.

In delivering its decision, the commission noted that the agreement contained provisions for minimum wages and conditions that were broadly consistent with the relevant awards and industry benchmarks. The commission also found that the agreement provided for adequate mechanisms for employee representation and dispute resolution, including the establishment of a joint consultative committee and provisions for conciliation and arbitration. The commission concluded that the agreement met the statutory requirements for approval, and granted the application for approval of the Enterprise Agreement 2022.

The commission's decision highlights the importance of ensuring that enterprise agreements meet the statutory requirements for approval under the Fair Work Act. Employers and employees should take care to ensure that their agreements provide for appropriate minimum wages and conditions, as well as adequate provisions for employee representation and dispute resolution. Failure to do so may result in objections to the approval of the agreement, and potential legal challenges.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established