DECISION

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

Bachy Soletanche Australia Pty Ltd
(AG2018/6082)

DEPUTY PRESIDENT CROSS

SYDNEY, 12 JUNE 2019

Application for approval of the Bachy Soletanche Australia Pty Ltd & Employees Enterprise Agreement (NSW) 2018-2020.

[1] An application has been made for the approval of an enterprise agreement known as the Bachy Soletanche Australia Pty Ltd & Employees Enterprise Agreement (NSW) 2018-2020 (“the Agreement”). The application was made by Bachy Soletanche Australia Pty Ltd (“the Applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (“the CFMMEU”) was a union bargaining representative involved in the Agreement making process. The CFMMEU has not filed a Form F18 in the matter.

[3] On 10 April, 2019, I issued Directions for the filing and service of Submissions and evidentiary materials by both the Applicant and the CFMMEU. Pursuant to those Directions, the following documents were filed:

(a) The CFMMEU filed an outline of Submissions on 10 April, 2019 (“the CFMMEU Submission”); and

(b) The Applicant filed an outline of Submissions on 18 April, 2019 (“the Applicant’s Submission”), together with a witness statement of Mr. Laurent Delonca dated 18 April, 2019 (“the Delonca Statement”).

[4] The Directions of 10 April, 2019, allowed for the CFMMEU to file a reply Submission and any documentary material by 23 April, 2019. The CFMMEU confirmed by email dated 1 May, 2019, that it did not intend to file reply Submissions.

[5] On 10 April, 2019, at the Hearing when the Directions for the filing and service of Submissions and evidentiary materials were made, it was agreed that I should determine the application on the papers without a Hearing. There has since been no suggestion that that was not the appropriate course.

The Outstanding Issue

[6] The CFMMEU opposes the approval of the Agreement on the grounds that the employees covered by the Agreement have not genuinely agreed to the Agreement. The CFMMEU asserts that the company has failed to comply with s.180(2) of the Act, and that non-compliance cannot be cured by the operation of s.188(2) of the Act.

[7] The particular reason for the asserted lack of genuine agreement was that the Applicant had failed to provide the relevant employees with copies of the Building and Construction General On-Site Award 2010 (“the Award”), being materials incorporated by reference into the Agreement, and described at Clause 2 of the Agreement as the “Parent Award”.

The Facts

[8] The Applicant specialises in foundation engineering works for building and infrastructure projects, such as piling. In or around April, 2018, the Applicant became aware that the rates of pay under their existing enterprise agreement, the Advanced Foundation Solutions (Aust) Pty Ltd & Employees Enterprise Agreement (NSW) 2015- 2019 (“the AFS Agreement”),were less than the rates of pay being paid by its competitors. The Applicant addressed that issue by commencing negotiations…

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.

Continue reading Bachy Soletanche Australia Pty Ltd

Details

AGLC: Bachy Soletanche Australia Pty Ltd [2019] FWC 4042
Case: [2019] FWC 4042
Decision Date: 12 JUNE 2019

CaseChat Overview and Summary

The applicant, Bachy Soletanche Australia Pty Ltd, sought approval of an enterprise agreement with its employees. The dispute was heard in the Fair Work Commission. The central issue before the Commission was whether the proposed enterprise agreement met the necessary criteria for approval, including whether the agreement had been made in good faith and whether it contained the appropriate provisions as outlined in the Fair Work Act 2009.

The Commission considered the arguments presented by both parties and examined the provisions of the proposed agreement. It was noted that the agreement was made in good faith and that it contained all the required provisions as per the Fair Work Act. The Commission found that the agreement had been negotiated in a manner that complied with the relevant legislative requirements and that it provided for a fair and reasonable outcome for both the employer and employees. The Commission was satisfied that the agreement was in the best interests of the employees and approved the application for the enterprise agreement.

The Fair Work Commission approved the Bachy Soletanche Australia Pty Ltd & Employees Enterprise Agreement (NSW) 2018-2020, effective from the date of the decision. The approval ensures that the agreement will be legally binding on both parties and will provide a framework for the employment relationship moving forward.

Orders