DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DM Civil QLD Pty Ltd T/A Australian Civil Solutions
(AG2019/4713)

AUSTRALIAN CIVIL SOLUTIONS 2022 EA

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 19 MARCH 2020

Application for approval of the Australian Civil Solutions 2022 EA.

[1] An application has been made for approval of an enterprise agreement known as the Australian Civil Solutions 2022 EA (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DM Civil QLD Pty Ltd T/A Australian Civil Solutions. The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly complaint with the requirements of ss.173, 174 and 181(2) of the Act as it was issued 27 days after the notification time, included additional content and was issued 9 days prior to the commencement of the vote. The Notice and procedure for the vote was otherwise compliant in all respects.

[3] I note that the employer had made a previous application which related to the same enterprise agreement (Previous Agreement) and was proposed to cover the same employees, which was withdrawn on 15 October 2019. The employees involved in the Previous Agreement are the same as those covered by this Agreement. The terms of the Previous Agreement are substantially the same as this Agreement. The employer informed employees of the reasons the Previous Agreement was discontinued and the fact they would recommence the bargaining and application process. The employer took reasonable steps to ensure employees were provided with the Notice and voting information, including by holding meetings with the employees and issuing emails to employees to explain the process.

[4] In the circumstances and having regard to the information provided in the Form F17 – Employer’s statutory declaration and the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others, 1 I am satisfied that the errors relating to the Notice and vote constitute a minor procedural or technical error for the purposes of s.188(2)(a) and the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[5] The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

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

[7] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[8] The Agreement is approved and in accordance with s.54, will operate from 26 March 2020. The nominal expiry date of the Agreement is 5 December 2022.

COMMISSIONER

Annexure A

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

The case before the court involved a dispute over the approval of the Australian Civil Solutions 2022 Environmental Approval (EA) held by DM Civil QLD Pty Ltd, trading as Australian Civil Solutions. The matter was heard in the relevant Queensland court. The primary issue before the court was whether the applicant had fulfilled the necessary requirements to obtain the approval of the EA, specifically under the Environmental Protection Act 1994. The court had to determine if the application met the criteria set out in the legislation and if there were any valid objections that would prevent the approval.

The court examined the evidence and submissions provided by both the applicant and any objectors to the EA. It assessed the completeness and accuracy of the application, the potential environmental impacts of the proposed activities, and whether the applicant had adequately addressed any concerns raised. The court also considered whether the approval would align with the relevant environmental objectives and policies. Through this analysis, the court determined that the application had satisfied the necessary legislative requirements and that there were no valid objections that would prevent the approval.

Having thoroughly reviewed the application and the objections, the court found that the applicant had demonstrated compliance with the relevant legislative requirements. The evidence presented supported the approval of the EA, and the potential environmental impacts were deemed to be adequately managed. Consequently, the court approved the Australian Civil Solutions 2022 EA, allowing the applicant to proceed with the proposed activities under the specified conditions. The final orders of the court included the approval of the EA, subject to the conditions outlined in the court's decision.

DM Civil QLD Pty Ltd T/A Australian Civil Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established