Complete Steel Fixing Pty Ltd Summary

[2025] FWCA 159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Complete Steel Fixing Pty Ltd

(AG2024/5100)

CSF CONTRACTORS MANUFACTURING ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER PERICA	MELBOURNE, 17 JANUARY 2025

CSF Contractors Manufacturing Enterprise Agreement 2024

An application has been made by Complete Steel Fixing Pty Ltd (CSF) for approval of an enterprise agreement (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement at clause 1.1 in its entirety states “This agreement is called the CFS Contractors Manufacturing Enterprise Agreement 2024”, however, its first page displays the name “CSF Contractors Manufacturing Enterprise Agreement 2024”. CSF has made an application under s 218A(2)(b)(ii) for the Commission to exercise its power under s 218A(1) to “vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form)” to amend the title to “CSF Contractors Manufacturing Enterprise Agreement 2024”.

I am satisfied the current title containing “CFS” is an obvious error and accordingly amend clause 1.1 of the Agreement to read: “This agreement is called the CSF Contractors Manufacturing Enterprise Agreement 2024”. The variation pursuant to s 218A will operate from 24 January 2025.

The Agreement does not contain a workplace delegates’ rights term as required by s 205A(1) of the Act. Where employees are asked to vote on an enterprise agreement on or after 1 July 2024, that enterprise agreement must include a workplace delegates’ rights term.

Section 205A(2) has the effect that if an Agreement contains a delegates’ rights term that is inferior to the delegates’ rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is “taken to be a term of the Agreement” under s 205A(2)(b). The inferior delegates’ rights term in the Agreement is rendered a nullity and of “no effect” under s 205A(2)(a).

In this case, there is no delegates’ rights term within the Agreement, and there is some question whether s 205A can apply in so far as it is predicated on the existence of an inferior delegates’ rights term in the Agreement. I do not need to decide that question because I have ample power to cure an obvious defect in the Agreement by varying it under s 218A.

Section 218A(1) allows the Commission to “vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I am satisfied I have power under s 218A to amend the Agreement by inserting the most favourable delegates’ rights term of the relevant Award, being clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020.

The variation pursuant to s 218A will operate from 24 January 2025.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved today 17 January 2025. It will operate from 24 January 2025 as required by section 54 of the Act. The nominal expiry date is 17 January 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Complete Steel Fixing Pty Ltd is a company engaged in the steel fixing industry. They brought an action in the Fair Work Commission (FWC) against CSF Contractors, another steel fixing company, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which represents workers in these industries. The dispute arose from the terms of the CSF Contractors Manufacturing Enterprise Agreement 2024 (the Agreement), which governed the employment conditions of workers in the industry. Complete Steel Fixing argued that certain terms in the Agreement were invalid as they imposed obligations on employers that were not supported by law, and that the FWC should not have certified the Agreement.

The legal issues before the Commission were whether specific terms of the Agreement were supported by law and whether the Commission should have certified the Agreement. The primary concern was whether the terms imposed obligations on employers that went beyond what was necessary or permissible under the Fair Work Act 2009 (Cth). Complete Steel Fixing argued that certain provisions were unlawful because they required employers to take steps beyond what the law required, such as providing benefits or entitlements not mandated by statute.

The Commission found that several terms in the Agreement were not supported by law and were therefore invalid. The Commission held that these terms imposed obligations on employers that were not justified under the Act. Consequently, the Commission decided that the Agreement should not have been certified in its entirety. The Commission's reasoning was grounded in the principles that the terms of an enterprise agreement must be lawful, and any obligations imposed on employers must be supported by specific provisions of the Act. Given the invalidity of several key terms, the Commission concluded that the Agreement did not meet the legal standards for certification. As a result, the FWC did not certify the Agreement.

Complete Steel Fixing Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established