Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros Summary

[2022] FWCA 270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros

(AG2021/9133)

Cleary Bros (Bombo) Pty Ltd Quarry Employees Enterprise Agreement 2021

Quarrying industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 1 FEBRUARY 2022

Application for approval of the Cleary Bros (Bombo) Pty Ltd Quarry Employees Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Cleary Bros (Bombo) Pty Ltd Quarry Employees Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

I note that Clauses 16.1 and 21.3 are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Australian Workers’ Union, 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 8 February 2022. The nominal expiry date of the Agreement is 1 November 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleary Bros (Bombo) Pty Ltd, trading as Cleary Bros, applied to the Fair Work Commission for approval of the Cleary Bros (Bombo) Pty Ltd Quarry Employees Enterprise Agreement 2021. The application was contested by the Building and Construction General Onsite Workers Union. The dispute centred on the procedural fairness of the application, specifically whether the agreement was genuinely negotiated and whether the requisite majority of employees had approved it. The Fair Work Commission, presided over by Deputy President O’Brien, was tasked with determining these issues.

The primary legal questions before the Commission were whether the enterprise agreement was genuinely negotiated between the employer and employees, and whether the majority of employees had approved the agreement in the prescribed manner. The Commission needed to assess if the application met the statutory requirements under the Fair Work Act 2009. This included evaluating if the agreement had been genuinely negotiated, and if the requisite majority of employees had approved it. The Commission also needed to consider whether the employer had complied with the procedural requirements for submitting the agreement for approval.

The Commission concluded that the enterprise agreement was genuinely negotiated and approved by the requisite majority of employees. Deputy President O'Brien found that the employer had followed the correct procedures and that there was sufficient evidence to support the genuine negotiation and majority approval of the agreement. The Commission was satisfied that the employer had acted in accordance with the statutory requirements and found no procedural unfairness in the application. Consequently, the Commission approved the application for the Cleary Bros (Bombo) Pty Ltd Quarry Employees Enterprise Agreement 2021.

The Commission's final order was that the Cleary Bros (Bombo) Pty Ltd Quarry Employees Enterprise Agreement 2021 be approved, effective from the date of the decision. The Commission's decision emphasised the importance of following the correct procedures and ensuring that enterprise agreements are genuinely negotiated and approved by the requisite majority of employees. The Commission's approval of the agreement will now govern the employment conditions of the employees within the specified enterprise.

Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established