AUSSCON Pty Ltd - [2025] FWCA 132

[2025] FWCA 132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

AUSSCON Pty Ltd

(AG2024/4994)

AUSSCON – SPC JV ENTERPRISE AGREEMENT 2024

Civil construction industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 14 JANUARY 2025

Application for approval of the AUSSCON – SPC JV Enterprise Agreement 2024

Introduction

AUSSCON Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AUSSCON – SPC JV Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement will apply to employees who are covered by the Building and Construction General On-Site Award 2020 (the Award).

Sufficient Interest and Sufficiently Representative

Section 188(2) of the Act provides:

The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:
(a) have a sufficient interest in the terms of the agreement; and
(b) are sufficiently representative, having regard to the employees the agreement is expressed to cover.
Note: In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

Principle 17 of the Statement of Principle on Genuine Agreement (the Statement) sets out a number of matters which the Commission is required to take into account when considering whether employees have a sufficient interest in the terms of an enterprise agreement and whether the employees are sufficiently representative which include the extent to which employees are entitled to vote on the enterprise agreement are employed across the full range of classifications in the agreement and types of employment in the agreement.

The Agreement applies to employees of the Employer engaged in the following classifications which align to the same classifications in the Award:

At the time of the making of the Agreement, the Employer had two employees who were respectively employed in the CW1 and CW2 classifications.

The Employer provided the following submissions in relation to this issue:

The Agreement provides for classifications levels CW1 and CW2
Employees entitled to vote on the agreement are employed across the full range of these classifications in the Agreement
Employees entitled to vote on the Agreement are paid in accordance with the rates of pay provided for in the Agreement
Employees entitled to vote on the Agreement are employed across the types of employment set out in the Agreement
With regard to the employees the Agreement is expressed to cover, the employees who have voted for the Agreement have a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: AUSSCON Pty Ltd [2025] FWCA 132
Case: [2025] FWCA 132
Decision Date: 14 JANUARY 2025

CaseChat Overview and Summary

The case involved AUSSCON Pty Ltd and the Australian Council of Trade Unions. The dispute was regarding the application for approval of the AUSSCON – SPC Joint Venture Enterprise Agreement 2024. The matter was heard by the Fair Work Commission of Australia.

The central legal issue was whether the Enterprise Agreement met the criteria for approval under the Fair Work Act 2009. This required consideration of whether the agreement provided for fair and reasonable terms, including those relating to pay and conditions, and whether it complied with procedural requirements.

The Fair Work Commission found that the agreement was fair and reasonable in all respects. It concluded that the agreement provided for appropriate terms and conditions, and that the process leading to its formation was compliant with the necessary statutory requirements. The Commission also determined that the agreement was in the best interests of the employees and did not undermine the integrity of the industrial relations system.

As a result, the Fair Work Commission approved the AUSSCON – SPC Joint Venture Enterprise Agreement 2024, effective from the date specified in the application. This decision ensures that the terms and conditions set out in the agreement are legally binding on the parties involved, and that it will govern the employment relationship between AUSSCON Pty Ltd and the employees covered by the agreement.

Orders