Ballestrin Construction Services Pty Ltd (Applicant) has applied to the Fair Work Commission (Commission) for the approval of an enterprise agreement known as the Ballestrin Construction Services Pty Ltd Enterprise Agreement 2023 (Agreement, or proposed agreement). The application is made under s.185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The application is opposed by the Construction, Forestry and Maritime Employees Union (CFMEU).

Background

The notification time for the Agreement was 2 June 2023. Voting on the approval of the Agreement occurred on 7 December 2023. On that date 27 of the 28 employees covered by the Agreement cast a valid vote and of those, 22 employees voted to approve the Agreement. If approved, the Agreement would supersede the Ballestrin Construction Services Enterprise Agreement 2019 (2019 Agreement).

The Commission identified some initial issues with the Agreement and provided the Applicant with an opportunity to respond to those concerns. Written submissions were provided by the Applicant in response.

On 24 January 2024 directions were made requiring the CFMEU to file written submissions detailing its objections to the application and for the Applicant to respond to those objections in writing. The Applicant provided an affidavit from Mr. Clifford Byrne, the Applicant’s construction manager, in support of the application. Written draft undertakings were also provided by the Applicant.

As a result of discussions between the parties, the CFMEU’s objections were narrowed and the matter was listed for hearing on 15 March 2024. The remaining CFMEU objections dealt with on that day were as follows:

(i)That the Commission could not be satisfied that the Agreement had been genuinely agreed because the Applicant had not complied with the requirement to provide material incorporated by reference, as required by s.180(2) of the Act. The material referred to was the Code for Tendering and Performance of Building Work 2016 (Code) and four employer policy documents relating to health and safety, drug and alcohol policy and the supply of clothing and footwear.

(ii)That the Commission could not be satisfied that the Agreement had been genuinely agreed because the requirements of the Act relating to the Notice of Employee Representational Rights (NERR) had not been met (sections 173, 174 and 181(2)).

(iii)That the Commission could not be satisfied that the Agreement had been genuinely agreed because the requirements of the Act relating to the explanation of the Agreement and its terms had not been met (s.180(5)).

(iv)That the Commission could not be satisfied that the Agreement passed the ‘better off overall test’ (BOOT)(s.186(2)(d)).

Legislative Requirements

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made changes…

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: Ballestrin Construction Services Pty Ltd [2024] FWCA 1220
Case: [2024] FWCA 1220
Decision Date: 5 APRIL 2024

CaseChat Overview and Summary

The matter involved an application for the approval of an enterprise agreement for Ballestrin Construction Services Pty Ltd, a company operating in the construction industry. The applicant, the Australian Building and Construction Commission, sought approval of the agreement under the Fair Work Act 2009. The application was heard in the Fair Work Commission, the body responsible for resolving workplace disputes and ensuring fair work practices in Australia.

The primary legal issue the Commission had to address was whether the enterprise agreement in question met the requirements set out in the Fair Work Act. Specifically, the Commission had to consider whether the agreement was "simple, fair and portable," and whether it contained terms and conditions that were not less favourable than the relevant award or safety net award. Additionally, the Commission needed to ensure that the agreement complied with the procedural requirements for its approval, including whether it had been genuinely agreed upon by the parties and whether it had been properly negotiated.

In reaching its decision, the Commission examined the content of the enterprise agreement, considering whether it aligned with the legislative criteria and did not undermine the safety net provided by the relevant awards. The Commission also assessed the evidence provided by the applicant regarding the negotiation process and the genuine agreement of the parties. After careful consideration of these factors, the Commission found that the agreement met the statutory requirements and did not contain any terms that were less favourable than the applicable awards. Consequently, the Commission approved the enterprise agreement, confirming its compliance with the Fair Work Act.

The Fair Work Commission approved the Ballestrin Construction Services Pty Ltd Enterprise Agreement 2023, determining that it met all statutory requirements and was fair and portable. The approval was contingent upon the agreement being registered with the Fair Work Registry. This decision underscored the importance of ensuring that enterprise agreements are negotiated genuinely and do not disadvantage employees by providing terms that are less favourable than the relevant awards.

Orders