DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Deicorp Pty Ltd
(AG2019/2379)

DEICORP PTY LTD ENTERPRISE AGREEMENT 2019 - 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 20 DECEMBER 2019

Application for approval of the Deicorp Pty Ltd Enterprise Agreement 2019 - 2023.

[1] Deicorp Pty Ltd (Deicorp) has applied for approval of a single enterprise agreement known as the Deicorp Pty Ltd Enterprise Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] I have determined to approve the Agreement in accordance with the Act. The reasons for this decision follow.

Context

[3] Bargaining for the Agreement commenced on 18 February 2019. 1 Fifteen written notices of appointment were provided to Deicorp, representing an election by each individual employee to be self-represented in bargaining.2

[4] On 21 June 2019, the Agreement was made when one hundred per cent of the fifteen employees to be covered voted to approve it. 3

[5] After the application was filed, the Commission raised concerns with Deicorp and the appointed employee bargaining representatives about whether the Agreement contradicts s.55 and passes the “better off overall” test.

[6] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was not a bargaining representative for the Agreement but sought to address the Commission in relation to additional concerns about whether the pre-approval steps were met and the Agreement passes the better off overall test. 4 Pursuant to s.590, the CFMMEU was invited to inform the Commission in relation to its specified objections. Deicorp did not oppose.

[7] Written materials were exchanged and a hearing took place on 8 October 2019. An undertaking was subsequently provided.

The “better off overall” test

[8] If approved, the Agreement would replace the existing Deicorp Enterprise Agreement 2013-2017 (2013 Agreement) and cover all employees of Deicorp where Deicorp undertakes construction work, including maintenance work (and not limited to State, Territory or region of Australia). 5 It is to be assessed against the Building and Construction General On-Site Award 2010 (Award).

Statutory framework

[9] The Commission must be satisfied that the Agreement passes the “better off overall test” in assessing whether it must be approved in accordance with the Act. 6

[10] An enterprise agreement passes the better off overall test if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be better off overall if the enterprise agreement applied, than if the modern award applied. 7

[11] It is clear from the references to “each award covered employee” 8 and “each prospective award covered employee”9 in s.193(1) that every employee and prospective employee must be assessed as better off overall under the Agreement than if the relevant modern award applied to that employee or prospective employee, as at the test time.10 However, s.193(7) permits the Commission to be satisfied, in particular circumstances, that all…

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: Deicorp Pty Ltd [2019] FWCA 8641
Case: [2019] FWCA 8641
Decision Date: 20 DECEMBER 2019

CaseChat Overview and Summary

Deicorp Pty Ltd was a matter before the Fair Work Commission, where the company sought approval of the Enterprise Agreement 2019-2023. The dispute involved the terms and conditions of employment for the employees covered by the agreement. The Fair Work Commission was required to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue was whether the agreement complied with the procedural and substantive requirements set out in the legislation. Procedurally, the Commission needed to ensure that the agreement was made in good faith and that proper consultation processes were followed. Substantively, the Commission had to assess whether the agreement provided for terms and conditions that were not less favourable than the applicable awards or registered agreements and whether it included provisions that met the "better off overall test" (BOOT).

The Fair Work Commission found that the agreement met the necessary procedural requirements, as it was made in good faith and the consultation processes were adequate. In terms of the substantive requirements, the Commission determined that the agreement provided for terms and conditions that were not less favourable than the applicable awards or registered agreements and met the BOOT. The Commission was satisfied that the agreement provided for fair and reasonable terms for the employees, taking into account factors such as wages, hours of work, and other employment conditions.

Consequently, the Fair Work Commission approved the Enterprise Agreement 2019-2023, ensuring that it would be legally binding on the parties involved. The decision reinforces the importance of meeting both procedural and substantive requirements when seeking approval of an enterprise agreement under the Fair Work Act 2009.

Orders