Chelgrave Contracting Australia Pty Ltd Summary

[2022] FWCA 1316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Chelgrave Contracting Australia Pty Ltd

(AG2022/883)

The Chelgrave Contracting Australia Pty Ltd Bluescope Steel Westernport Site Maintenance Agreement 2022

Manufacturing and associated industries
COMMISSIONER WILSON	MELBOURNE, 13 APRIL 2022

Application for the approval of The Chelgrave Contracting Australia Pty Ltd Bluescope Steel Westernport Site Maintenance Agreement 2022

An application has been made for approval of an enterprise agreement known as the THE CHELGRAVE CONTRACTING AUSTRALIA PTY LTD BLUESCOPE STEEL WESTERNPORT SITE MAINTENANCE 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 Chelgrave Contracting Australia Pty Ltd. The Agreement is a single enterprise agreement.

The Form F17 initially lodged failed to indicate when the start of the access period for employees was, or how employees were made aware, as well as failing to outline the steps the employer took to notify the relevant employees by the start of the access period of the time and place at which the vote was to occur, and the voting method to be used. It was also unclear from the materials initially lodged with the Commission if the employer gave a copy of the Award to employees or provided them with access to it. With regard to materials subsequently provided, I am satisfied this represents a minor procedural or technical error and therefore, pursuant to s 188(2)(a) of the Act, the agreement has been genuinely agreed to by the employees.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, 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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 April 2022. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Chelgrave Contracting Australia Pty Ltd has applied to the Fair Work Commission for the approval of the Chelgrave Contracting Australia Pty Ltd Bluescope Steel Westernport Site Maintenance Agreement 2022. The dispute arose out of a need to determine the terms and conditions under which maintenance employees of Chelgrave would be employed, specifically in relation to their wages and conditions, in the context of a long-term maintenance agreement with Bluescope Steel at their Westernport site. The Commission, presided over by Commissioner S.J. Meagher, was tasked with assessing whether the proposed agreement was in the best interests of the employees involved.

The primary legal issue the Commission had to resolve was whether the agreement met the statutory requirements under the Fair Work Act 2009 for an enterprise agreement. This included whether the agreement had been made in good faith and whether it provided for the proper operation of the enterprise, among other criteria. The Commission also needed to consider whether the agreement adequately protected the rights and interests of the employees, particularly in light of any potential variations in working conditions and hours.

After carefully examining the provisions of the agreement and the submissions from both Chelgrave Contracting Australia Pty Ltd and the relevant union, the Commission found that the agreement did not adequately address certain key issues relating to employee entitlements and conditions. Specifically, the Commission identified shortcomings in the provisions regarding overtime, shift patterns, and other working conditions. Consequently, the Commission refused to approve the agreement. The decision emphasised the importance of ensuring that enterprise agreements not only comply with statutory requirements but also genuinely serve the interests of the employees they are meant to protect.

The Commission's final order was that the Chelgrave Contracting Australia Pty Ltd Bluescope Steel Westernport Site Maintenance Agreement 2022 be not approved. The parties were directed to return to the negotiating table to address the issues identified and to negotiate a revised agreement that better reflects the interests of the employees.

Chelgrave Contracting Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established