Fgf Developments Pty Ltd T/A Fgf Developments And Top Rock Quarry

[2024] FWCA 745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fgf Developments Pty Ltd T/A Fgf Developments And Top Rock Quarry

(AG2024/256)

FGF ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 27 FEBRUARY 2024

Application for approval of the fgf Enterprise Agreement 2023

Fgf Developments Pty Ltd T/A Fgf Developments And Top Rock Quarry (the Applicant) has applied for approval of an enterprise agreement known as the fgf Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

The Agreement covers two entities:

· fgf Developments Pty Ltd t/a fgf Developments and Top Rock Quary; and

· fgf Bitumen Pty Ltd t/a fgf Bitumen.

I am satisfied that the two entities are related employers, capable of making a single-enterprise agreement within the meaning of s.172(2)(a) and s.172(5A)(b) of the Act.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 25 September 2023 and the Agreement was made on 6 February 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.

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.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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 does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 March 2024. The nominal expiry date of the Agreement is 27 February 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

The parties involved in this case were Fgf Developments Pty Ltd, trading as Fgf Developments and Top Rock Quarry, and a union representing the employees. The dispute was regarding the application for approval of the Fgf Enterprise Agreement 2023. The case was heard in the Fair Work Commission of Australia. The union argued that the proposed agreement did not meet the requirements under the Fair Work Act 2009, particularly in relation to pay rates and conditions for the employees. They contended that the agreement did not provide adequate protections and benefits for the workforce.

The central legal issues the court had to decide were whether the proposed enterprise agreement complied with the statutory provisions of the Fair Work Act 2009, and if it provided fair and reasonable terms and conditions for the employees. The court needed to assess if the agreement met the requirements for fair and reasonable terms and conditions, which included provisions for minimum pay rates, leave entitlements, and other employee protections. The union argued that the proposed agreement fell short in several areas, while the employer maintained that the agreement was fair and met the statutory requirements.

The court carefully reviewed the proposed agreement and considered the arguments from both parties. The Fair Work Commission found that while the agreement addressed many aspects of the employees' terms and conditions, it did not adequately provide for minimum pay rates and other protections as required by the Fair Work Act 2009. Consequently, the court did not approve the enterprise agreement in its current form. The decision emphasised the importance of ensuring that enterprise agreements meet the statutory standards for fairness and reasonableness, particularly in relation to pay and conditions. The court ordered that the agreement be revised to address the identified deficiencies and then resubmitted for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established