Curara Pty Ltd

[2019] FWCA 5502

[2019] FWCA 5502

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Curara Pty Ltd
(AG2019/2670)

CURARA PTY LTD WESTERN REGION AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 9 AUGUST 2019

Application for approval of the Curara Pty Ltd Western Region Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Curara Pty Ltd Western Region Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Curara Pty Ltd. The Agreement is a single enterprise agreement.

[2] On 5 August 2019 the Fair Work Commission (Commission) wrote to the Applicant noting that only five employees voted to approve the Agreement. The Commission identified a potential issue regarding the scope of the Agreement and whether it could be said that the Agreement had been ‘genuinely agreed to by the employees covered by the agreement’, as required by s 186(2)(a) of the Act, noting the decision in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd. A decision not disturbed on appeal, One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union.

[3] In response on 7 August 2019, the Applicant’s Representative submitted,

“It is submitted that the Agreement made in this matter goes no further than what the plurality of the High Court in Aldi Foods Pty Ltd v SDA [2017] HCA 53 (ALDI) observed as being uncontroversial that the votes of a few original employees may eventually bind a much larger group.

Further, the plurality of the High Court in ALDI reinforced the findings of the Full Court of the Federal Court in CFMEU v John Holland Pty Ltd (2015) 228 FCR 297 that there is nothing implausible in the legislature accepting that a small group of employees may be able to fix the terms and conditions of employment for all the employees who may be employed in the enterprise in the future.”

[4] The Applicant’s Representative further submitted,

“Further, in contrast to the decision in One Key the relevant employees covered by the Agreement can be: [168] …regarded as having a sufficient appreciation of the appropriateness of the terms and conditions proposed for the disparate occupational classifications covered…

In the circumstances, the Agreement does not fall into the category of enterprise agreement cautioned against by the Court in One Key. To the contrary, the Agreement is of a kind considered and endorsed in cases such as ALDI, John Holland, LS Precast Pty Ltd, MKJV Pty Ltd and MACA Mining.”

[5] Having regard to all that has been submitted in relation to the matter 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.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 August 2019. The nominal expiry date of the Agreement is 9 August 2023.

COMMISSIONER

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