Finlay Group Contracting Pty Ltd

[2024] FWCA 34

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Finlay Group Contracting Pty Ltd

(AG2023/5185)

FINLAY GROUP CONTRACTING ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 4 JANUARY 2024

Application for approval of the Finlay Group Contracting Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Finlay Group Contracting 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 Finlay Group Contracting Pty Ltd (the Applicant). 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 8 November 2023 and the Agreement was made on 7 December 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.

The Applicant has provided written 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 January 2024. The nominal expiry date of the Agreement is 4 January 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Finlay Group Contracting Pty Ltd for the approval of the Finlay Group Contracting Enterprise Agreement 2023. The dispute centred on whether the proposed agreement complied with the relevant statutory provisions under the Fair Work Act 2009. The parties were Finlay Group Contracting Pty Ltd, as the employer, and the Australian Workers' Union, representing the employees. The Commission was tasked with assessing whether the agreement met the procedural and substantive requirements set out in the legislation, particularly in relation to the agreement's coverage of employees, its terms, and the process through which it was negotiated and agreed upon.

The legal issues before the Commission primarily revolved around the procedural fairness of the agreement and whether it had been genuinely bargained between the employer and the union. Specifically, the Commission had to determine if the agreement was made in good faith, if the union had genuinely represented the employees in negotiations, and whether the agreement provided adequate protections for employees. Additionally, the Commission considered whether the agreement met the standards of procedural fairness, including the provision of sufficient information and opportunity for employees to be heard during the negotiation process.

In its decision, the Commission examined the evidence provided by both parties, including witness testimonies and documentary evidence. The Commission found that the Finlay Group Contracting Enterprise Agreement 2023 was genuinely bargained and met the requirements of procedural fairness. The Commission was satisfied that the agreement provided fair and reasonable terms for the employees and complied with the statutory obligations under the Fair Work Act 2009. The Commission also determined that the union had genuinely represented the employees during the negotiation process and that the employees had been adequately informed and given the opportunity to participate in the negotiations.

The Fair Work Commission approved the Finlay Group Contracting Enterprise Agreement 2023, making it a legally binding agreement between Finlay Group Contracting Pty Ltd and the Australian Workers' Union. The Commission's decision was based on the evidence presented, confirming that the agreement met all necessary legal criteria. The approval of the agreement ensures that the terms and conditions of employment for the employees covered by the agreement are governed by the provisions set out in the approved enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established