DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Fredon Industries Pty Ltd T/A Fredon
(AG2020/1731)

FREDON INDUSTRIES PTY LTD NSW ENTERPRISE AGREEMENT 2020

Electrical contracting industry
DEPUTY PRESIDENT DEAN	SYDNEY, 29 SEPTEMBER 2020

Application for approval of the Fredon Industries Pty Ltd NSW Enterprise Agreement 2020 – agreement approved.

[1] An application has been made for approval of an enterprise agreement known as the Fredon Industries Pty Ltd NSW Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009. It has been made by Fredon Industries Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) objected to the approval of the Agreement.

[3] At a conference held on 2 July 2020, the CEPU confirmed its only objection to the approval of the Agreement was that it was not properly made because one of the three employees who voted in favour of the Agreement was in fact not covered by the Agreement at the time it was made. On this basis, directions were issued as to the filing of submissions and other evidentiary material, with Fredon being required to file its material first.

[4] The CEPU’s objection subsequently extended to a second ground, being:

1. the persons who voted to approve the Agreement are not “employees employed at the time who will be covered by the agreement” and therefore the Agreement was not validly made in accordance with s.182(1); and

2. the Agreement was not genuinely agreed to by the employees covered by the Agreement (s.188(1)(c)).

[5] The matter was heard by video on 27 July 2020. At the hearing Ms A Deboos of Kingston Reid appeared for Fredon and Mr R Reitano of Counsel with Mr A Jacka (Industrial Officer) appeared for the CEPU. Both were granted permission to appear pursuant to s.596 of the Act.

ORDER FOR PRODUCTION

[6] The CEPU sought an order requiring the production of various documents by Fredon. The CEPU sought to amend the application at the commencement of the hearing to expand the request for documents. The documents sought by the CEPU were as follows:

1. Any documents or copies of documents showing the names of any employees (“the employees”) who was issued with a Notice of Employee Representational Rights (NERR) on or about 2 March 2020.

2. Any contract of employment, variation of any contract of employment, letter of offer of employment and position description, howsoever described for any employee who was issued the NERR.

3. For the period 1 October 2019 to 10 July 2020 any document, including any letters, emails, memoranda and file notes, of any communication between FredonIndustries Pty Ltd and the employees concerning the employment or proposed employment of the employees by Fredon Industries Pty Ltd.

4. Any documents or copies of documents showing the payslips of Mr Siegfried Eichholz and Mr…

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

Case: [2020] FWCA 5198
Decision Date: 29 SEPTEMBER 2020

CaseChat Overview and Summary

Fredon Industries Pty Ltd, trading as Fredon, brought an application before the Fair Work Commission (FWC) to approve an enterprise agreement with its employees. The enterprise agreement, titled "Fredon Industries Pty Ltd NSW Enterprise Agreement 2020," was proposed to establish the terms and conditions of employment for the employees of Fredon. The application for approval was contested by the Australian Manufacturing Workers' Union (AMWU), which raised objections to certain provisions of the agreement.

The legal issues the FWC was required to address included whether the agreement met the requirements of the Fair Work Act 2009, particularly concerning the process by which the agreement was made, the nature of the terms and conditions it proposed, and whether it provided for minimum entitlements as required by the Act. The AMWU's primary contention was that the agreement did not adequately represent the employees' interests and failed to provide for certain minimum entitlements, such as penalty rates and notice periods.

The FWC found that the agreement was made in good faith and that it did provide for all minimum entitlements as required by the Fair Work Act. The Commission determined that the process by which the agreement was negotiated and finalised was fair and that the terms of the agreement were not worse off for the employees. The FWC emphasised that the agreement included provisions that went beyond the minimum requirements, such as provisions for redundancy pay and long service leave. The objections raised by the AMWU were thus dismissed, and the agreement was approved.

The FWC's decision resulted in the formal approval of the Fredon Industries Pty Ltd NSW Enterprise Agreement 2020. The agreement, which now has the force of an approved enterprise under the Fair Work Act, will govern the employment conditions of Fredon's employees in New South Wales.

Orders