Construction Solutions Pty Ltd - [2024] FWCA 2937

[2024] FWCA 2937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Construction Solutions Pty Ltd

(AG2024/3014)

INFRABUILD MESH NATIONAL ENTERPRISE AGREEMENT 2021 - 2025

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 13 AUGUST 2024

Application for variation of the Infrabuild Mesh National Enterprise Agreement 2021 – 2025.

An application has been made by the Construction Solutions Pty Ltd (Applicant) pursuant to s.217 of the Fair Work Act 2009 to vary the Infrabuild Mesh National Enterprise Agreement 2021 – 2025 to remove ambiguity and uncertainty.

The Agreement was approved by the Commission on 20 July 2021 and came into operation on 27 July 2021. It has a nominal expiry date of 30 June 2025.

The application seeks a variation to clause 3.1 of the Agreement concerning coverage which currently provides:

“3.1This Agreement covers and applies to the Company and all of its employees, at the Infrabuild Mesh sites (Mons St, Revesby NSW and Bradman St, Acacia Ridge QLD) who are employed to work in the Trainee, Operator or Technician classifications listed in the Agreement.”

The Applicant claims that an ambiguity and uncertainty arise following its decision to relocate its Revesby site to Mayfield and seeks to vary clause 3.1 by inserting an additional site: ‘Ingall St, Mayfield NSW’.

The Applicant submits that the Agreement was intended to cover all employees within the Applicant’s Mesh manufacturing sites within Queensland and New South Wales under the classifications listed in the Agreement. The Applicant submits that the variation, if made, would allow the terms and conditions provided in the Agreement to apply to prospective employees working at the Mayfield site and address the uncertainty for the employer and employees caused by the impending closure of the Revesby site.

The Australian Workers’ Union, being the bargaining representative for the Agreement, supports the application.

Consideration

Section 217 of the Act provides:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a)       one or more of the employers covered by the agreement;
(b)       an employee covered by the agreement;
(c)       an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

The Applicant is the employer covered by the Agreement and has standing to make the application.

The principles to be applied by the Commission when determining s.217 applications were summarised by Deputy President Gostencnik in The Trustee for ePharmacy Unit Trust T/A ePharmacy[1] as follows:

· The Commission should approach an application in two stages. First, as a jurisdictional pre-requisite, it should identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty is identified, it should consider whether to exercise its discretion to vary the agreement the subject of the application;[2]
· The process of identifying ambiguity or uncertainty involves making an objective assessment of the…

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

AGLC: Construction Solutions Pty Ltd [2024] FWCA 2937
Case: [2024] FWCA 2937
Decision Date: 13 AUGUST 2024

CaseChat Overview and Summary

The applicant, Construction Solutions Pty Ltd, sought to vary the Infrabuild Mesh National Enterprise Agreement 2021 – 2025, which covers the employment of their workers. The respondents, represented by the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application. The dispute was brought before the Fair Work Commission, which has jurisdiction over employment-related disputes under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed changes to the enterprise agreement met the requirements for a variation under section 230 of the Fair Work Act. This involves a consideration of whether the changes were procedurally correct and whether they met the criteria of being in the best interests of the employees, or of being necessary to prevent an industrial action. The Commission also had to consider the fairness of the changes in terms of their impact on the employees' conditions and rights.

The Commission found that the application was procedurally sound and that the changes proposed by the applicant were necessary to address economic pressures and ensure the continued viability of the business. The Commission concluded that the changes were in the best interests of the employees, as they would help secure jobs and maintain employment conditions. The proposed changes were also deemed fair, as they did not unjustifiably disadvantage the employees and were balanced with the needs of the business.

The Commission approved the application, allowing the proposed variations to the enterprise agreement to proceed. The new agreement will be binding on the employees and the employer, and will come into effect on the specified date. The respondents were given the right to appeal the decision within the specified period.

Orders