Caledonia SA Pty Ltd - [2022] FWC 2846

[2022] FWC 2846

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Caledonia SA Pty Ltd

(AG2022/1907)

DEPUTY PRESIDENT BOYCE

SYDNEY, 24 OCTOBER 2022

Application for approval of the Caledonia Scaffolding Services Enterprise Agreement 2022 – concerns of intervener as to absence of genuine agreement and non-compliance with better off overall test – non-compliance with s.180(5) of the Fair Work Act 2009 – absence of satisfaction as to genuine agreement – application dismissed

An application has been made for approval of an enterprise agreement to be known as the Caledonia Scaffolding Services Enterprise Agreement 2022 (Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Caledonia SA Pty Ltd t/as Caledonia Scaffolding (Applicant/Employer). The Agreement is a single enterprise agreement.

The Construction Forestry Maritime Mining Energy Union (CFMMEU) was granted leave to intervene in the proceedings to make submissions opposing the approval of the Agreement. The Applicant did not oppose the CFMMEU’s intervention. The CFMMEU was not involved in the bargaining of the Agreement, or its approval by relevant employees. Despite this, it appears to be uncontested that the CFMMEU was a default bargaining representative for one or more relevant employees by virtue of s.176(b) of the Act (albeit another employee bargaining representative was appointed under s.176(c) of the Act).[1]

Mr Tom Earls, Partner, Fair Work Lawyers, appeared (with permission) for the Applicant, and Mr Peter Russell, Senior Legal and Industrial Officer, appeared for the CFMMEU.

The Agreement is a third reiteration rollover enterprise agreement made under the Act.[2]

Initially, the CFMMEU’s concerns as to the approval of the Agreement were limited to the better off overall test (BOOT) in terms of its application to loaded rates under the Agreement.[3] The CFMMEU subsequently expanded its concerns to also include an alleged absence of genuine agreement.[4]

On 13 July 2022, the Applicant made submissions, provided detailed 24-page calculations, and proffered preliminary undertakings to address the BOOT concerns raised by the CFMMEU. In response, the CFMMEU, in its submissions dated 18 July 2022, submitted that the proffered undertakings do not address the concerns raised by the CFMMEU, will cause financial detriment to employees covered by the Agreement, disclose an absence of genuine agreement, and/or will result in substantial changes to the Agreement.[5]

By way of revised written undertakings dated 29 July 2022 (July Undertakings), and submissions dated 2 August 2022, the Applicant directly engaged with the CFMMEU’s concerns in relation to genuine agreement, and set out the basis upon which it considers that its revised undertakings address any concerns as to the BOOT.

In its submissions supporting the July Undertakings, the Applicant relevantly stated:

“6. Notwithstanding, the Applicant has, fairly, acknowledged that when one undertakes an exercise outside of the industrial reality of the work contemplated by the parties to the Agreement, and which occurs in practice, there may be issues with the BOOT and has offered…

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: Caledonia SA Pty Ltd [2022] FWC 2846
Case: [2022] FWC 2846
Decision Date: 24 OCTOBER 2022

CaseChat Overview and Summary

Caledonia SA Pty Ltd was the subject of an application for the approval of the Caledonia Scaffolding Services Enterprise Agreement 2022, which was brought before the Fair Work Commission. The intervener, representing the interests of employees, raised concerns regarding the absence of genuine agreement and the non-compliance with the better off overall test, as well as the failure to adhere to section 180(5) of the Fair Work Act 2009. The central issue before the court was whether the agreement met the statutory requirements for genuine agreement and compliance with the better off overall test.

The court examined the arguments presented by the intervener and the evidence provided by Caledonia SA Pty Ltd. The intervener contended that the agreement did not reflect a genuine consensus between the parties and failed to meet the better off overall test, which mandates that employees should not be worse off financially under the new agreement compared to the previous one. Additionally, the intervener argued that the company had not demonstrated satisfaction as to the genuine agreement, as required by section 180(5) of the Fair Work Act 2009. The court found that the application for approval of the agreement did not meet the necessary statutory requirements.

Following a thorough examination of the evidence and arguments presented, the court concluded that the application for approval of the Caledonia Scaffolding Services Enterprise Agreement 2022 should be dismissed. The court determined that there was insufficient evidence to demonstrate a genuine agreement and compliance with the better off overall test. Consequently, the application was dismissed due to the absence of satisfaction as to genuine agreement and non-compliance with section 180(5) of the Fair Work Act 2009.

Orders