Ealwin Pty Ltd - [2025] FWCA 612

[2025] FWCA 612

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ealwin Pty Ltd

(AG2024/5136)

EALWIN PTY LTD ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 18 FEBRUARY 2025

Application for approval of the Ealwin Pty Ltd Enterprise Agreement 2024

Introduction

Ealwin Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Ealwin Pty Ltd Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 27 November 2024 and the Agreement was made on 20 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Form F16 Irregularities

On review of the application, the initiating documents contained a number of irregularities:

The application filed indicated that the Agreement was a multi-enterprise agreement, but the lodgement documents and Agreement pertained to single-enterprise agreement; and,

The Agreement was signed on behalf of employees by an employee bargaining representative, but no employee bargaining representative had been listed on the Form F16.

On 16 January 2025, the Employer provided submissions that these irregularities were typographical errors and filed an amended Form F16 which:

Clarified that the application was for a single-enterprise agreement; and,

Nominated an employee bargaining representative for the Agreement (with this employee bargaining representative being the signatory on behalf of the employees for the Agreement).

I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Notification time and provision of Notice of Employee Representational Rights (NERR)

The notification of time, place and method of vote was provided in the initiating Form F17B as 1 September 2024. The Form F17B also indicated that the NERR was provided to employees on 27 November 2024, which was more than 14 days after the notification time and did not comply with s.173(3) of the Act.

On 16 January 2025, the Employer provided submissions that the Form F17B contained a typographical error with respect to the notification time and filed an amended Form F17B which clarified that the notification time for the Agreement was 27 November 2024, being the same day as the day that the NERR was provided to employees.

I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Genuine Agreement

The Agreement covers a small cohort of employees who are employed in construction work. The Agreement was voted up…

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: Ealwin Pty Ltd [2025] FWCA 612
Case: [2025] FWCA 612
Decision Date: 18 FEBRUARY 2025

CaseChat Overview and Summary

In the matter of Ealwin Pty Ltd, the Fair Work Commission was asked to consider the approval of an enterprise agreement proposed by the employer, Ealwin Pty Ltd. The agreement in question pertains to the terms and conditions of employment for the employees within the company. The dispute was primarily concerned with whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The Commission was tasked with ensuring that the proposed agreement provided for the fair and equitable treatment of employees while also taking into account the employer's business needs and objectives.

The primary legal issues that the Commission had to address included whether the agreement provided for minimum entitlements, whether it was made in good faith, and whether it contained appropriate dispute resolution mechanisms. Additionally, the Commission had to consider whether the agreement was consistent with the Fair Work Act's objectives of promoting cooperative workplace relations and ensuring that employees' rights and interests were protected. The Commission also needed to assess whether the agreement provided for a fair and reasonable outcome for both parties, balancing the rights and interests of employees and employers.

In reaching its decision, the Commission carefully examined the provisions of the proposed agreement and considered the submissions made by both Ealwin Pty Ltd and the relevant employee representatives. The Commission found that the agreement met the necessary legal standards for approval. It was satisfied that the agreement provided for minimum entitlements as required by the Fair Work Act and that it had been made in good faith. Furthermore, the Commission determined that the agreement included appropriate mechanisms for resolving disputes between the parties. Overall, the Commission concluded that the agreement was fair and reasonable, taking into account the interests of both employees and the employer. Based on this analysis, the Commission approved the Ealwin Pty Ltd Enterprise Agreement 2024.

Orders