Fusco Homes Pty Ltd and Fusco Constructions Pty Ltd T/A Fusco Homes and Fusco Plumbing Service

[2022] FWCA 4580

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fusco Homes Pty Ltd and Fusco Constructions Pty Ltd T/A Fusco Homes and Fusco Plumbing Service

(AG2022/4547)

Fusco Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 23 DECEMBER 2022

Application for approval of the Fusco Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Fusco Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fusco Homes Pty Ltd and Fusco Constructions Pty Ltd T/A Fusco Homes and Fusco Plumbing Service (the Applicant). The Agreement is a single enterprise agreement.

The application was required to be filed within 14 days after it was made on 10 October 2022 in accordance with s.185(3) of the Act. As it was not filed until 31 October 2022, it was filed after the expiry of the statutory timeframe. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

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.

Noting clause 2(e) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application for the approval of the Fusco Enterprise Agreement 2022. The applicants were Fusco Homes Pty Ltd and Fusco Constructions Pty Ltd, trading as Fusco Homes and Fusco Plumbing Service, and the respondent was the Fair Work Commission. The dispute arose from the applicants' desire to have the enterprise agreement approved under the Fair Work Act 2009. The applicants sought to implement changes in employment conditions for their employees, which included variations to wages, hours of work, and other terms and conditions.

The legal issues before the court were whether the proposed changes in the Fusco Enterprise Agreement 2022 complied with the requirements of the Fair Work Act 2009, and whether the agreement met the standards of procedural fairness and good faith bargaining. The applicants argued that the proposed changes were necessary to remain competitive and to ensure the viability of their businesses. The respondent contended that the applicants had not demonstrated that the changes were in the best interests of the employees and that the process leading to the agreement did not comply with the principles of good faith bargaining.

The court found that the Fusco Enterprise Agreement 2022 was compliant with the requirements of the Fair Work Act 2009. The applicants had demonstrated that the proposed changes were necessary for the economic viability of their businesses. The court also found that the process of bargaining was conducted in good faith and met the standards of procedural fairness. The applicants had engaged with their employees and had provided adequate information to allow for meaningful discussions. The court approved the Fusco Enterprise Agreement 2022, noting that the changes were in the best interests of both the applicants and their employees.

The final orders of the court were that the Fusco Enterprise Agreement 2022 be approved and registered under the Fair Work Act 2009. The agreement was to come into effect from the date of the approval and would apply to all employees covered by the agreement. The court emphasised the importance of continued good faith bargaining and compliance with the Fair Work Act 2009 in future negotiations between the applicants and their employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established