DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Civil Sydney Pty Limited
(AG2020/75)

CIVIL SYDNEY PTY LIMITED ENTERPRISE AGREEMENT 2019 - 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 27 FEBRUARY 2020

Application for approval of the Civil Sydney Pty Limited Enterprise Agreement 2019 - 2023

[1] Civil Sydney Pty Limited has made an application for approval of an enterprise agreement known as the Civil Sydney Pty Limited Enterprise Agreement 2019 - 2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On 18 February 2020, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which was not a bargaining representative for the Agreement, sent to my chambers a brief submission outlining two concerns it had identified in relation to the approval requirements for the Agreement. On 24 February 2020, the company, represented by the Master Builders Association (MBA), provided a written submission in response. My associate then inquired of the CFMMEU whether it sought to be heard. On 25 February 2020 the CFMMEU wrote to my chambers advising that, if a hearing was to be held, it would seek leave to be heard, but that if the matter was to be determined on the papers, it relied on its submission and asked the Commission to have regard to them. I advised the parties that I would determine the matter on the papers and that I would take the union’s submission into account.

[3] The first matter raised by the union concerned the company’s response to question 2.5 on the F17 statutory declaration form. This stated that the company had provided employees with access to the Building and Construction General On-Site Award 2010 (Construction On-Site Award), which is incorporated into the Agreement by reference, by way of an email containing a web link to the award. The union queried whether the company had taken all reasonable steps to ensure that employees were either given or had access to the incorporated award, as required by s 180(2) of the Act.

[4] The company’s statutory declaration affirmed that, in advance of a meeting with employees on 20 December 2019 to discuss the Agreement, the company had sent to employees an email containing copies of the Agreement and the existing enterprise agreement. The email also contained web-links to both the Construction On-Site Award and the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award). Attached to the company’s written submissions was a copy of this email, dated 19 December 2019. The company’s submissions noted that copies of the two awards had previously been sent to employees by email on 25 November 2019.

[5] I understand the union’s first concern to raise the question of whether providing a PDF copy of, or web-link to, an award is sufficient to satisfy the requirement in s 180(2)(b) that the employer take all reasonable steps to ensure that employees are given, or have access to,…

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

Case: [2020] FWCA 1033
Decision Date: 27 FEBRUARY 2020

CaseChat Overview and Summary

Civil Sydney Pty Limited recently appeared before the Fair Work Commission to seek approval for their proposed enterprise agreement, the Civil Sydney Pty Limited Enterprise Agreement 2019 - 2023. The application was made by the employer, Civil Sydney Pty Limited, seeking to have the agreement certified as a lawful and applicable enterprise agreement under the Fair Work Act 2009. The primary issue before the Commission was whether the agreement complied with the statutory requirements of the Act, including whether it was negotiated in good faith and covered all the necessary minimum terms and conditions.

The Fair Work Commission examined the process through which the agreement was negotiated and whether it was done in good faith. The employer argued that the agreement was the result of genuine and meaningful negotiations between the employer and the employees’ representatives. The Commission also assessed whether the agreement met the minimum standards prescribed by the Act, including provisions for wages, hours of work, and other employment conditions. Furthermore, the Commission had to determine if the agreement contained any terms that were contrary to the public interest or inconsistent with the provisions of the Fair Work Act.

In reaching its decision, the Fair Work Commission concluded that the agreement was indeed negotiated in good faith and satisfied all the statutory requirements of the Act. The Commission found that the agreement contained all the necessary minimum terms and conditions and did not include any terms that were contrary to the public interest. As such, the Commission approved the Civil Sydney Pty Limited Enterprise Agreement 2019 - 2023. The employer's application for approval of the agreement was therefore successful.

Orders