Dewar Rigging Pty Ltd t/a Dewar Rigging

[2022] FWCA 63

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dewar Rigging Pty Ltd t/a Dewar Rigging

(AG2021/8723)

Dewar Rigging On-Site Enterprise Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 12 JANUARY 2022

Application for approval of the Dewar Rigging On-Site Enterprise Agreement 2021.

Dewar Rigging Pty Ltd has applied for approval of a single enterprise agreement known as the Dewar Rigging On-Site Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met, whether the Agreement contains the mandatory terms and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these matters.

The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it included additional content (it contained logos and other written text or information than that in the prescribed form). The Notice was otherwise compliant in all respects. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others[1], I am satisfied that:

a)this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b)the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

I am satisfied that clauses 5 and 21 of the Agreement incorporate the flexibility term at clause 5 of the Building and Construction General On-Site Award 2020 such that clause 5 of the Award is a term of the Agreement and that this meets the requirements of ss.202 and 203 of the Act.

I am satisfied with regard to clause 5 of the Agreement that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. I am satisfied that 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement was approved on 12 January 2022 and, in accordance with s.54, will operate from 19 January 2022. The nominal expiry date of the Agreement is 19 January 2025.

For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details.[2]

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

[2] The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Dewar Rigging Pty Ltd, trading as Dewar Rigging, applied for approval of the Dewar Rigging On-Site Enterprise Agreement 2021. The applicant is a company engaged in rigging and hoisting services, and the dispute centred on the terms and conditions of employment for its employees. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement was a genuine enterprise agreement and whether it complied with the procedural and substantive requirements set out in the Act. The Commission had to assess if the agreement was made in good faith, covered a relevant group of employees, and contained terms that were fair and reasonable. Additionally, the Commission examined if the agreement was properly certified by the relevant independent statutory body.

After reviewing the evidence and submissions, the Commission found that the Dewar Rigging On-Site Enterprise Agreement 2021 was a genuine enterprise agreement. The applicant demonstrated that the agreement was made in good faith and was certified by the relevant body. The Commission also determined that the agreement covered a relevant group of employees and contained terms that were fair and reasonable. Consequently, the Commission approved the agreement, finding it to be compliant with the legal requirements under the Act.

The Commission's decision was based on the applicant's compliance with the necessary procedural and substantive criteria. The agreement was considered to be beneficial for the employees and the employer, and the Commission concluded that it would promote harmonious, productive, and cooperative workplace relations. As a result, the Dewar Rigging On-Site Enterprise Agreement 2021 was approved, and the applicant's application was successful.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established