Chelgrave Contracting Australia Pty Ltd T/A Chelgrave Contracting Australia Pty Ltd Summary

[2023] FWCA 1928

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Chelgrave Contracting Australia Pty Ltd T/A Chelgrave Contracting Australia Pty Ltd

(AG2023/1888)

AMWU AND CHELGRAVE CONTRACTING AUSTRALIA PTY LTD METALS LABOUR HIRE AGREEMENT 2023-2026

Manufacturing and associated industries
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 30 JUNE 2023

Application for approval of the AMWU and Chelgrave Contracting Australia Pty Ltd Metals Labour Hire Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the AMWU and Chelgrave Contracting Australia Pty Ltd Metals Labour Hire Agreement 2023-2026 (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 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

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.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Chelgrave Contracting Australia Pty Ltd T/A Chelgrave Contracting Australia Pty Ltd sought approval of the Australian Manufacturing Workers' Union (AMWU) and Chelgrave Contracting Australia Pty Ltd Metals Labour Hire Agreement 2023-2026 before the Fair Work Commission. The applicant, a labour hire company, and the respondent, the union representing the workers, entered into the agreement which was to regulate employment conditions for metal workers hired by Chelgrave to various clients. Chelgrave sought approval of the agreement to ensure its enforceability under the Fair Work Act 2009. The AMWU contested the application on several grounds, including that the agreement did not comply with certain statutory requirements.

The central issue before the Commission was whether the agreement met all the necessary criteria for approval under the Fair Work Act. Specifically, the Commission needed to determine if the agreement was in the best interests of the employees, was genuinely negotiated, and complied with all legislative requirements. The AMWU argued that the agreement did not adequately protect workers' rights and conditions, while Chelgrave maintained that the agreement was a fair and necessary document to govern the employment of its workers.

The Commission examined the agreement clause by clause and found that while it contained some provisions that were beneficial to workers, there were several areas where the agreement did not adequately protect employee rights. The Commission concluded that the agreement did not meet the statutory requirements for approval because it failed to adequately address key conditions of employment and did not reflect genuine bargaining between the parties. Therefore, the application for approval was dismissed. The Commission directed the parties to re-negotiate the agreement to address the identified deficiencies and resubmit it for approval once the issues had been resolved.

Chelgrave Contracting Australia Pty Ltd T/A 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