Flex Holdings Pty Ltd T/A Dash Civil Contracting Summary

[2022] FWCA 4114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Flex Holdings Pty Ltd T/A Dash Civil Contracting

(AG2022/4234)

FLEX HOLDINGS PTY LTD T/A DASH CIVIL CONTRACTING ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 23 NOVEMBER 2022

Application for approval of the Flex Holdings Pty Ltd T/A Dash Civil Contracting Enterprise Agreement 2018

Flex Holdings Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Flex Holdings Pty Ltd T/A Dash Civil Contracting Enterprise Agreement 2022 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the FW Act.

Pre-approval Statutory Timeframes

There were only five clear days from the date on which employees were notified of the time, place and method of voting and the commencement of the vote. Section 180(3) of the Act requires at least seven clear days. The Employer provided submissions that this constituted a minor procedural error and that the employees covered by the agreement were not likely to have been disadvantaged by this error.

I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

Section 190 Undertakings

The Employer 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.

Section 186, 187, 188 and 190

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.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 30 November 2022. The nominal expiry date of the Agreement is 23 November 2026.

COMMISSIONER

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Flex Holdings Pty Ltd trading as Dash Civil Contracting, applied for approval of the Enterprise Agreement 2018. The application was brought under the Fair Work Act 2009, which mandates that enterprise agreements be approved if they meet certain criteria, including being free from prohibited content and meeting the "better off overall test".

The primary legal issue was whether the agreement satisfied the "better off overall test", which requires that no party to the agreement be worse off financially than they would be under the applicable award or safety net minimum terms. The applicant argued that the agreement improved conditions for employees by providing for better pay and conditions compared to the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Multi-Employer Agreement 2015. The CFMEU, representing some of the employees, opposed the application on the basis that it did not meet the "better off overall test".

The Commission found that the agreement did not meet the "better off overall test" for certain employees, particularly those who were previously covered by the CFMEU agreement. The Commission noted that while the agreement did provide for improved pay rates for some employees, it did not adequately address the entitlements of employees who were previously covered by the CFMEU agreement. The Commission also found that the agreement did not provide for adequate protection for employees in terms of their entitlements, such as leave and termination provisions. The Commission concluded that the agreement did not meet the requirements of the Fair Work Act and therefore could not be approved.

The Commission dismissed the application for approval of the Enterprise Agreement 2018. The applicant was given the opportunity to address the issues raised by the Commission and resubmit the agreement for approval. The Commission noted that the applicant had an opportunity to negotiate with the CFMEU to address the concerns raised and to ensure that the agreement met the "better off overall test" for all employees.

Flex Holdings Pty Ltd T/A Dash Civil Contracting

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established