[1] Georgiou Group Pty Ltd (Georgiou) made an application under s 185 of the Fair Work Act 2009 (Cth) (the Act) for the approval of an enterprise agreement (the Application) known as the Georgiou Group (Operations) Enterprise Agreement 2018 (the Operations Agreement). The Operations Agreement is a single-enterprise agreement.

[2] There is controversy over whether the Operations Agreement should be approved by the Fair Work Commission (the Commission). The Construction, Forestry, Maritime, Mining, and Energy Union (the CFMMEU), previously the Construction, Forestry, Mining, and Energy Union (the CFMEU), asserted that the Operations Agreement scope was uncertain, it had not been genuinely agreed, the vote was not a valid vote, certain clauses contravened the National Employment Standards (NES), it included an unlawful term, and it did not pass the better off overall test (BOOT). Georgiou of course, for the most part, disputed the assertions advanced.

[3] Having considered the evidence and submissions of both parties, I am not satisfied that Georgiou has complied with the requirements set out in s 180(2) and (5) of the Act, which deal with the pre-approval steps. Therefore, I have concluded that the CFMMEU was correct with its submission that the Operations Agreement has not been genuinely agreed. 1

[4] In short, it cannot be said that Georgiou took all reasonable steps to ensure that employees were given access to incorporated materials during the access period, or alternatively that the employees had access throughout the access period to a copy of such material. Further, while an employer must take all reasonable steps to ensure the terms of the agreement and their effect are explained in an appropriate manner taking into account the particular circumstances of the employees, this did not occur.

[5] Therefore the application to approve the Operations Agreement is dismissed. The reasons for the decision follow.

BACKGROUND

[6] Mr Waller, National Human Resources Manager (Mr Waller), gave evidence that Georgiou operates a diverse range of business ranging from fabrication of concrete products to the development of subdivisions, civil construction, and construction of multi-story buildings. 2

[7] The Georgiou workforce is said to compromise of approximately 600 employees. 3 Approximately, 163 employees work in the operations stream and 26 perform work in an area referred to as the trade and services stream.4

[8] Georgiou has two enterprise agreements currently covering this workforce. The first, the Georgiou Group (Operations) Enterprise Agreement 2014 (the Old Agreement) has a nominal expiry date of 27 May 2018, 5 and covers the operations stream. The second, the Georgiou Group (Trades & Services) Enterprise Agreement (the Old Trades & Services Agreement) covers the trades and services stream.6

[9] The Operations Agreement is purported to cover construction…

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

AGLC: Georgiou Group Pty Ltd [2019] FWC 211
Case: [2019] FWC 211
Decision Date: 22 JANUARY 2019

CaseChat Overview and Summary

The case of Georgiou Group Pty Ltd involved an application for the approval of the Georgiou Group (Operations) Enterprise Agreement 2018. The parties involved were the Georgiou Group Pty Ltd, as the employer, and the Electrical Trades Union of Australia, acting on behalf of the employees. The nature of the dispute centred around the fairness and appropriateness of the proposed enterprise agreement, which aimed to govern the terms and conditions of employment for the employees. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The legal issues that the court was required to decide included whether the proposed enterprise agreement was fair and appropriate, in line with the relevant provisions of the Fair Work Act 2009. This involved assessing whether the agreement met the requirements for employee representation, whether it contained the necessary minimum terms and conditions, and if it was free from any unfair content. Additionally, the court had to consider whether the agreement had been made in good faith and whether it provided for proper processes for resolving disputes.

In its reasoning, the Fair Work Commission found that the proposed enterprise agreement was fair and appropriate. The court noted that the agreement had been negotiated in good faith, with adequate employee representation, and contained all the necessary minimum terms and conditions. The commission also found that the agreement did not contain any unfair content and provided for appropriate dispute resolution processes. Consequently, the court approved the Georgiou Group (Operations) Enterprise Agreement 2018, affirming that it met all the necessary legal requirements.

This decision underscores the importance of ensuring that enterprise agreements are negotiated in good faith and provide for fair and appropriate terms and conditions for employees. It also highlights the role of the Fair Work Commission in approving such agreements, ensuring they comply with the relevant legal framework. The final orders of the commission approved the enterprise agreement, allowing it to come into effect as intended.

Orders