CCS Commercial Construction Specialists Pty Ltd T/A CCS Commercial Construction Specialists Pty Ltd

[2021] FWCA 6128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CCS Commercial Construction Specialists Pty Ltd T/A CCS Commercial Construction Specialists Pty Ltd
(AG2021/7411)

CCS COMMERCIAL CONSTRUCTION SPECIALISTS PTY LTD & THE AUSTRALIAN WORKERS’ UNION AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 6 OCTOBER 2021

Application for approval of the CCS Commercial Construction Specialists Pty Ltd & The Australian Workers’ Union Agreement 2021

[1] CCS Commercial Construction Specialists Pty Ltd T/A CCS Commercial Construction Specialists Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the CCS Commercial Construction Specialists Pty Ltd & The Australian Workers’ Union Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] A number of concerns were raised by the Commission in relation to the Agreement. A conference was held in relation to those matters on 1 October 2021.

[3] The Employer did not provide employees with 7 clear days between notification of the time, place and method of voting and the commencement of the vote. The Employer and the Australian Workers' Union provided further material in relation to this error. I am satisfied having regard to that material and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[4] Accordingly, notwithstanding the matters identified in paragraph [3] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[5] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, and having heard from the parties, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The Australian Workers' Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[8] The Agreement was approved on 6 October 2021 and, in accordance with s 54, will operate from 13 October 2021. The nominal expiry date of the Agreement is 28 February 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

Annexure A

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to consider whether to approve an agreement between CCS Commercial Construction Specialists Pty Ltd and the Australian Workers’ Union. The dispute arose from the parties' attempt to establish an enterprise agreement under the Fair Work Act 2009. The central issue before the FWC was whether the agreement met the requirements for approval, specifically whether it passed the 'better off overall test' (BOOT). This test ensures that the proposed agreement provides employees with a minimum of 15% improvement in their pay and conditions compared to the existing award or agreement.

The FWC examined the financial implications of the proposed agreement, including wage increases, allowances, and other benefits, against the backdrop of the existing award. The union argued that the agreement provided substantial improvements in pay and conditions, while the employer contested that the changes were too significant and would negatively impact their business. After reviewing the submissions from both parties and considering the relevant legal framework, the FWC found that the proposed agreement did indeed pass the BOOT. The FWC concluded that the agreement offered a fair balance between the interests of the employees and the employer, providing adequate improvements in pay and conditions.

As a result, the FWC approved the CCS Commercial Construction Specialists Pty Ltd & The Australian Workers’ Union Agreement 2021. The decision sets a precedent for future enterprise agreements within the construction industry, highlighting the importance of achieving a fair balance between the interests of employees and employers. This approval ensures that employees receive adequate improvements in their pay and conditions, while also allowing employers to maintain a competitive edge in the market.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established