Exclusive Contracting (WA) Pty Ltd

[2024] FWCA 3542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Exclusive Contracting (WA) Pty Ltd

(AG2024/3088)

EXCLUSIVE CONTRACTING (WA) LTD PTY / CFMEU SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 OCTOBER 2024

Application for approval of the Exclusive Contracting (WA) Ltd Pty / CFMEU South Australia Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Exclusive Contracting (WA) Ltd Pty / CFMEU South Australia Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Exclusive Contracting (WA) Pty Ltd. The Agreement is a single enterprise agreement.

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 Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 14 August 2023 and the Agreement was made on 29 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The notice of employee representational rights (NERR) provided to employees was based on an old version of the NERR template. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 October 2024. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for approval of the Exclusive Contracting (WA) Ltd Pty / CFMEU South Australia Enterprise Agreement 2023. The dispute centred around whether the proposed agreement met the legal standards for approval under the Fair Work Act 2009. The Commission was tasked with ensuring that the agreement complied with relevant provisions, particularly those relating to fair and reasonable terms and conditions for employees.

The central legal issue the Commission had to address was whether the proposed enterprise agreement contained provisions that were genuinely bargained, and whether it adhered to the requirements for "direct" agreements as outlined in the Fair Work Act. This included scrutinising the agreement to ensure it did not unfairly disadvantage employees or include terms that were outside the scope of what is typically agreed upon between employers and unions. Additionally, the Commission needed to determine if the agreement complied with minimum standards and provisions related to employee entitlements, such as pay rates, hours of work, and leave provisions.

The Commission examined the agreement thoroughly, considering submissions from both parties. It assessed the fairness and reasonableness of the proposed terms, the nature of the bargaining process, and the compliance with statutory minimum standards. The Commission concluded that the agreement was genuinely negotiated and met the statutory requirements for approval. It found that the terms and conditions were fair and reasonable, and the agreement complied with all necessary provisions of the Fair Work Act. Consequently, the Commission approved the Exclusive Contracting (WA) Ltd Pty / CFMEU South Australia Enterprise Agreement 2023, as it satisfied all legal criteria for endorsement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established