Caledonia SA Pty Ltd - [2022] FWCA 3703

[2022] FWCA 3703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Caledonia SA Pty Ltd

(AG2022/1907)

CALEDONIA SCAFFOLDING SERVICES ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
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…

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.

Continue reading Caledonia SA Pty Ltd

Details

AGLC: Caledonia SA Pty Ltd [2022] FWCA 3703
Case: [2022] FWCA 3703
Decision Date: 24 OCTOBER 2022

CaseChat Overview and Summary

Caledonia SA Pty Ltd is before the Fair Work Commission, with the matter concerning the approval of the Caledonia Scaffolding Services Enterprise Agreement 2022. An intervener has raised concerns about the absence of genuine agreement between the parties and non-compliance with the better off overall test. The intervener also asserted that the application did not comply with section 180(5) of the Fair Work Act 2009. The court had to decide whether the application met the legal requirements and if there was genuine agreement between the parties. The Commission examined the evidence and submissions presented and assessed whether the agreement was genuinely negotiated and if it satisfied the better off overall test. The Commission also evaluated the compliance with the statutory requirements under the Fair Work Act.

The Fair Work Commission found that the application did not comply with section 180(5) of the Fair Work Act 2009, as it did not provide sufficient evidence of genuine agreement between the parties. The intervener's concerns regarding the absence of genuine agreement and non-compliance with the better off overall test were upheld. As a result, the Commission could not be satisfied that the agreement met the legal requirements and dismissed the application for approval of the Caledonia Scaffolding Services Enterprise Agreement 2022.

The Fair Work Commission's decision highlights the importance of genuine agreement and compliance with statutory requirements in enterprise agreements. The intervener's concerns were substantiated, and the Commission's dismissal of the application demonstrates the significance of meeting the legal criteria for approval of such agreements. The decision serves as a reminder to parties involved in enterprise agreement negotiations to ensure that the process is genuine and the agreement complies with the relevant legislative requirements.

Orders