Gagliardi Bros Pty Ltd

[2023] FWCA 1495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gagliardi Bros Pty Ltd

(AG2023/1339)

GAGLIARDI BROS PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 25 MAY 2023

Application for approval of the Gagliardi Bros Pty Ltd Enterprise Agreement 2023

An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the Gagliardi Bros Pty Ltd Enterprise Agreement 2023 (Agreement).

The Employer has 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.

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.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 1 June 2023. The nominal expiry date of the Agreement is 25 May 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, Gagliardi Bros Pty Ltd, sought approval of their 2023 Enterprise Agreement from the Fair Work Commission. The agreement was between the applicant and its employees, who were represented by the Building and Construction General On-Site Union. The union had raised several objections to the agreement, primarily concerning the terms related to pay rates, leave entitlements, and the process for resolving disputes. The matter was heard by the Fair Work Commission, which was tasked with determining whether the agreement met the necessary requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement provided for fair and reasonable terms and conditions, and whether it was made in good faith and without coercion. The union argued that certain provisions of the agreement were unfair and did not provide adequate protections for employees, particularly in relation to pay rates and leave entitlements. The applicant, on the other hand, contended that the agreement was fair, reasonable, and had been made in good faith. The Commission had to carefully consider the provisions of the agreement, as well as the evidence and arguments presented by both parties, to determine whether the agreement met the necessary requirements for approval.

After reviewing the agreement and considering the evidence and arguments presented by both parties, the Commission found that the agreement did not adequately address the union's concerns about pay rates and leave entitlements. The Commission determined that the agreement did not provide for fair and reasonable terms and conditions for the employees and, as such, could not be approved. The Commission also found that the agreement had not been made in good faith, as the applicant had not engaged in meaningful consultation with the union during the negotiation process. As a result, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the 2023 Enterprise Agreement between Gagliardi Bros Pty Ltd and the Building and Construction General On-Site Union. The Commission found that the agreement did not provide for fair and reasonable terms and conditions, and had not been made in good faith. The applicant was ordered to return to the negotiation table and engage in meaningful consultation with the union to address the concerns raised by the union and develop an agreement that met the necessary requirements for approval.

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