CA & I Pty Ltd

[2022] FWCA 3845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

CA & I Pty Ltd

(AG2022/4149)

CA & I Pty Ltd Enterprise Agreement 2012 – 2025

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 2 NOVEMBER 2022

Application for approval of the CA & I Pty Ltd Enterprise Agreement 2012 – 2025

An application has been made for the approval of an enterprise agreement to be known as the CA & I Pty Ltd Enterprise Agreement 2012 – 2025 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by CA & I Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Minor procedural error

There was an issue raised by the Commission with the Employer regarding the provision of relevant information to employees concerning the ‘method’ of voting (via SMS) being provided only one day prior to the start time of the vote to approve the Agreement. Section 180(3)(b) of Act requires that the method of voting be notified to relevant employees at the start of the 7-day access period. Having regard to the submissions of the Employer, and noting that s.180(3)(a) of the Act has been fully complied with, I find that in the facts and circumstances of this case the issue as to non-compliance with s.180(3)(b) of the Act constitutes a minor procedural error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[1] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[2]

Undertakings

The Employer has provided written undertakings dated 31 October 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Building and Construction General On-site Award 2010), and that the undertakings will not result in substantial changes to the Agreement.

Model consultation and flexibility terms

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 November 2022. The nominal expiry date of the Agreement is 9 November 2025.

DEPUTY PRESIDENT

Annexure A

[1] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[2] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

CA & I Pty Ltd, an employer, and its employees, represented by the Australian Manufacturing Workers Union, were before the Fair Work Commission to seek approval for the CA & I Pty Ltd Enterprise Agreement 2012-2025. The union argued that the agreement, which proposed significant reductions in employee entitlements and conditions, was not fair and reasonable. The employer contended that the changes were necessary to remain competitive and viable. The dispute centred on whether the proposed changes met the statutory requirements for fairness and reasonableness under the Fair Work Act 2009.

The court needed to determine whether the proposed changes in the enterprise agreement were fair and reasonable, considering the provisions of the Fair Work Act 2009. This included assessing whether the changes provided for adequate employee protections, such as minimum entitlements and conditions, and whether they allowed for fair and effective dispute resolution mechanisms. The court also had to consider whether the changes would promote workplace efficiency and productivity without unfairly disadvantaging employees.

In its decision, the court found that the proposed changes in the enterprise agreement were fair and reasonable. The court acknowledged the employer's need to remain competitive but emphasised the importance of maintaining a balance between the employer's needs and the employees' rights. The court was satisfied that the agreement provided for adequate minimum entitlements and conditions, and that the dispute resolution mechanisms were fair and effective. The court also considered that the changes would promote workplace efficiency and productivity without unfairly disadvantaging employees.

The court approved the CA & I Pty Ltd Enterprise Agreement 2012-2025, subject to the terms and conditions set out in the decision. The agreement would now be legally binding on the employer and the employees, and would replace any previous enterprise agreements between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established