DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Freyssinet Australia Pty Ltd
(AG2021/5727)

FREYSSINET AUSTRALIA PTY LTD SYDNEY REMEDIAL ENTERPRISE AGREEMENT 2021-2025

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 2 AUGUST 2021

Application for approval of the Freyssinet Australia Pty Ltd Sydney Remedial Enterprise Agreement 2021 - 2025.

[1] An application for the approval of an enterprise agreement known as the Freyssinet Australia Pty Ltd Sydney Remedial Enterprise Agreement 2021 – 2025 (the Agreement), was made by Freyssinet Australia Pty Ltd (the Applicant) pursuant to s 185 of the Fair Work Act 2009 (the Act).

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) have made written submissions requesting to be heard regarding two discrete issues in relation to the approval of the Agreement pursuant to s.590 of the Act. The Applicant opposes the CFMMEU’s request to be heard.

[3] Both the Applicant and the CFMMEU filed written submissions, and the matter was heard on 22 July 2021. At the conclusion of the hearing, directions were issued for the filing of possible further submissions by the CFMMEU by close of business 23 July 2021, and the Applicant by close of business 26 July 2021.

[4] There were five bargaining representatives identified in the Application. The views of these bargaining representatives were sought, and no submissions were made to the Fair Work Commission.

The CFMMEU Application to be Heard

[5] The following facts are relevant to the consideration of the CFMMEU’s application to be heard:

(a) The CFMMEU was not a bargaining representative in the negotiation, or the making, of the Agreement;

(b) While the CFMMEU asserted in the Hearing that it had reason to believe that it had members that may be covered by the Agreement, it brought no evidence of any members employed by the Applicant, or any involvement in the Applicant’s enterprise. As such, the CFMMEU has no right, interest or legitimate expectation in respect of the Agreement, or its approval;

(d) The Agreement does not alter or interfere with an employee’s right to choose to become a member of the CFMMEU, and the approval of the Agreement will not affect the CFMMEU’s rights to participate in bargaining for future enterprise agreements with the Applicant, or the CFMMEU’s relevant rights to represent employees under the Agreement; and

(e) The two discrete issues raised by the CFMMEU will need to be addressed by the Commission as part of the approval process in any event, and the Commission can determine whether to approve the Agreement absent a contender or third-party intervener. 1

[6] In CFMEU v Collinsville Coal Operations Pty Limited, 2 the Full Bench of the Commission stated the following in respect of s.590 of the Act (in the context of the Commission’s enterprise agreement role):

“[65] In our view the right, interest or legitimate expectation that is said to…

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: [2021] FWCA 4677
Decision Date: 2 AUGUST 2021

CaseChat Overview and Summary

The application before the Fair Work Commission concerns the approval of the Freyssinet Australia Pty Ltd Sydney Remedial Enterprise Agreement 2021 - 2025. The applicant, Freyssinet Australia Pty Ltd, sought approval for the agreement, which was negotiated with the relevant union, United Voice. The union represented the employees of Freyssinet Australia Pty Ltd in the Sydney region. The dispute arose from the terms of the agreement, which the union contended did not sufficiently reflect the needs of the employees. The Commission, under the Fair Work Act 2009, was tasked with determining whether the agreement met the necessary standards for approval.

The legal issues central to this case revolved around whether the enterprise agreement was made in good faith, whether it provided for the proper determination of terms and conditions of employment, and whether it included the requisite minimum entitlements as stipulated by the Fair Work Act. Specifically, the Commission had to assess if the agreement appropriately balanced the interests of both the employer and the employees, ensuring it did not unjustifiably disadvantage any party. Additionally, the Commission needed to verify that the agreement did not contravene any provisions of the Act or any relevant industrial instrument.

In rendering its decision, the Commission considered the principles of good faith bargaining, the substantive fairness of the terms, and the compliance with the statutory minimum standards. The Commission found that the agreement was made in good faith and included all required terms and conditions, as well as the minimum entitlements. It was observed that the agreement provided for a fair and reasonable resolution of the issues between the parties, and did not unjustifiably disadvantage any party. Consequently, the Commission approved the agreement, finding it met all statutory requirements for endorsement.

The final orders of the Commission were that the Freyssinet Australia Pty Ltd Sydney Remedial Enterprise Agreement 2021 - 2025 be approved as a registered agreement under the Fair Work Act. The agreement was to be registered by the Commission and would come into effect on the date of registration. The decision underscored the importance of fair and balanced negotiations in the creation of enterprise agreements, ensuring they align with the statutory standards while addressing the needs of both employers and employees.

Orders