Caledonia Qld Pty Ltd

[2022] FWCA 4214

[2022] FWCA 4214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Caledonia Qld Pty Ltd

(AG2022/4668)

Caledonia Qld Pty Ltd Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 30 NOVEMBER 2022

Application for approval of the Caledonia Qld Pty Ltd Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Caledonia Qld Pty Ltd Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Caledonia Qld Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Construction, Forestry, Mining and Energy Union (CFMEU) wrote to the Commission on 10 November 2022 expressing an intention to make submissions in the matter and requesting a copy of the Form F16, Form F17, Notice of Representative Rights and any other relevant documentation. The Commission provided a redacted copy of those materials to the CFMEU on 11 November 2022. In that same correspondence, inter alia, the Commission advised the CFMEU that they were not listed as a Union Bargaining Representative in this Application and should they be unable to establish that status, they may not be permitted to be heard or make submissions in the matter.

1. On 17 November 2022, my Chambers wrote to the CFMEU and sought a list of employees who are members of the Union. This list was to be provided to Chambers by no later than 4:00pm on Monday 21 November 2022. No response or list has been received from the CFMEU.

1. On 23 November 2022, my Chambers again wrote to the CFMEU and directed the CFMEU to confirm whether they actually intend to make submissions on the Agreement given their email of 10 November 2022. The CFMEU were directed that they respond to the Commission, copying the Applicant by no later than 4:00pm Friday 25 November 2022. They were advised that if no response was received, it will be assumed that the CFMEU withdraws their request to make submissions or be heard on the matter. No response has been received from the CFMEU nor has an F18 been lodged by the CFMEU.

1. The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Agreement does not contain a model flexibility term compliant with the Act. 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

1. The Agreement does not contain a model consultation term compliant with the Act. Pursuant to section 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.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·  Clause 3.5.3 – Abandonment of Employment – noting the exemption to this clause for daily hire and casual employees;

·   Clause 3.6.1.1 – Termination - noting the exemption to this clause for daily hire and casual employees; and

·   Clause 6.2.1 – Annual Leave.

1. However, noting clause 1.5.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 29 November 2026.

DEPUTY PRESIDENT

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