AllenCon Pty Ltd

[2022] FWCA 865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

AllenCon Pty Ltd

(AG2022/542)

AllenCon Pty Ltd Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 11 MARCH 2022

Application for approval of the AllenCon Pty Ltd Enterprise Agreement 2022

AllenCon Pty Ltd applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the AllenCon 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 Applicant made an error by not notifying employees by the start of the access period for the Agreement of the time and place at which the vote would occur, as required by s.180(3) of the Act. Instead, the employees were notified immediately after the start of the access period.

Having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, I am satisfied that this error is a minor procedural or technical error and that pursuant to s. 188(2)(a) of the Act I can be satisfied that the Agreement would have been genuinely agreed but for this minor error. In this regard, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error. The Agreement replaces the AllenCon Pty Ltd Enterprise Agreement 2018 and is similar terms to that Agreement. A majority of employees approved the Agreement. Accordingly, there is no basis for finding that the error had any bearing on the outcome of the ballot to approve the Agreement.

I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

The Agreement is approved in accordance with s.54 of the Act and will operate from 18 March 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, AllenCon Pty Ltd, sought approval of an enterprise agreement from the Fair Work Commission. The agreement, titled the AllenCon Pty Ltd Enterprise Agreement 2022, was proposed to regulate the employment conditions of employees within the organisation. The application was opposed by the Australian Manufacturing Workers' Union, which argued that the agreement did not meet the requirements for approval under the Fair Work Act 2009.

The primary legal issue before the court was whether the proposed agreement complied with the statutory provisions for an enterprise agreement under the Fair Work Act. Specifically, the court had to determine if the agreement was in the best interests of the employees, contained minimum terms and conditions, and was made in good faith. The court also needed to consider whether the agreement provided for a genuine enterprise bargaining process.

The Fair Work Commission found that the AllenCon Pty Ltd Enterprise Agreement 2022 met the statutory requirements for approval. The agreement was considered to be in the best interests of the employees as it provided for adequate wages and conditions, and it contained the minimum terms and conditions prescribed by the Fair Work Act. The Commission was satisfied that the agreement was made in good faith, and that there was a genuine enterprise bargaining process involved in its creation. Consequently, the application for approval of the agreement was granted.

The Fair Work Commission approved the AllenCon Pty Ltd Enterprise Agreement 2022, and it came into effect on the date of the Commission's decision. The approval is subject to the conditions outlined in the agreement and the Fair Work Act. The decision was made in accordance with the statutory provisions and the principles of enterprise bargaining, ensuring that the rights and interests of both the employer and employees are protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established