DECISION

Fair Work Act 2009
s.185—Enterprise agreement

C&H Acquisition Pty Ltd T/A C&H Acquisition
(AG2019/4028)

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 20 MARCH 2020

Application for approval of the C&H Gencon Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the C&H Gencon Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by C&H Acquisition Pty Ltd with that name being used interchangeably by the Applicant with “Gencon”. The Agreement is a single enterprise agreement.

[2] Shortly after the application commenced, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) requested they be provided with a copy of the Form F16 initiating application, the Form F17 Employer’s Statutory Declaration and the Notice of Employee Representative Rights (NERR). The Commission provided redacted copies of the requested documents to the union on the same day. The CFMMEU was not a bargaining representative for the Agreement. The CFMMEU also requested access to the redacted voting information contained in the Form F17 Employer’s Statutory Declaration. After a review of the material provided by the CFMMEU and the Applicant on the subject I was satisfied the CFMMEU had demonstrated a material interest in the matter and the unredacted voting information was provided to the CFMMEU. In providing the redacted voting information I also notified parties that the views of the CFMMEU would be sought prior to the application for approval being determined.

[3] Following this preliminary process, and in the usual course, my Chambers sent correspondence to the parties named in the initiating application setting out the concerns I held in relation to the Agreement in respect of pre-approval matters, the National Employment Standards and the Better Off Overall Test (BOOT).

[4] The employer provided a response to the matters set out in the correspondence of 22 November 2019 on 27 November 2019. The individual bargaining representative confirmed his support of the proposed Undertakings. On reviewing the material provided by the employer, I was not satisfied that all of the matters raised by me had been adequately addressed. I therefore caused further correspondence to be issued to the named parties laying out those matters that remained unresolved. Amended Undertakings were proffered by the Applicant in response to the indicated outstanding concerns. The individual bargaining representative again confirmed his support of the proposed Undertakings.

[5] After these initial consideration stages, communication was sent in order to ascertain whether the CFMMEU maintained its objections, which it did. Directions were issued for the union’s concerns to be fully articulated and responded to by the Applicant.

[6] Once filed, the CFMMEU submissions canvassed matters of non-compliance with s.180(5) of the Act and whether the Better Off Overall Test (BOOT) had been met in relation to employees covered by the Agreement.

[7] I have received written submissions from both the Applicant and the CFMMEU, each of whom agreed…

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

Case: [2020] FWC 1142
Decision Date: 20 MARCH 2020

CaseChat Overview and Summary

In the recent decision of C&H Acquisition Pty Ltd T/A C&H Acquisition, the Fair Work Commission was tasked with determining the approval of the C&H Gencon Enterprise Agreement 2020. The applicant, C&H Acquisition, sought approval of the agreement which was intended to govern the employment conditions of certain workers. The dispute centred on whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the C&H Gencon Enterprise Agreement 2020 complied with the requirements set forth in the Fair Work Act. This involved scrutinising various aspects of the agreement, including whether it was free from any improper influence or coercion, whether it was appropriately negotiated, and whether it met the standards for good faith bargaining. The Commission also needed to consider whether the agreement appropriately covered the relevant employees and whether it complied with the prescribed minimum entitlements.

Upon review, the Commission found that the C&H Gencon Enterprise Agreement 2020 was appropriately negotiated and met the standards for good faith bargaining. The agreement was deemed to be free from any improper influence or coercion, and it was noted that it adequately covered the relevant employees. Additionally, the Commission determined that the agreement complied with the prescribed minimum entitlements under the Fair Work Act. Therefore, the Commission was satisfied that the agreement met all necessary criteria for approval.

As a result, the Commission approved the C&H Gencon Enterprise Agreement 2020, effective from the date of the decision. The agreement will now govern the employment conditions of the relevant workers, providing them with the terms and conditions outlined within the approved document.

Orders