Glen Eden Constructions Pty Ltd - [2022] FWCA 2102

[2022] FWCA 2102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Glen Eden Constructions Pty Ltd

(AG2022/1208)

Glen Eden Constructions Pty Ltd Enterprise Agreement 2022 – 2026

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 27 JUNE 2022

Application for approval of the Glen Eden Constructions Pty Ltd Enterprise Agreement 2022 - 2026

An application has been made for approval of an enterprise agreement known as the Glen Eden Constructions Pty Ltd Enterprise Agreement 2022 – 2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Glen Eden Constructions Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

On 27 April 2022 the matter was allocated to me, and I sent correspondence to the Applicant on 29 April 2022 setting out some concerns that were identified with the Agreement.

On 3 May 2022 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) wrote to the Commission seeking to be heard and requesting the documents submitted in the matter. Later that day, these were sent to the CFMMEU.

I listed the matter for a Directions Hearing on 10 May 2022 where I granted leave for the CFMMEU to be heard and set directions for the filing of material. Both parties filed in accordance with those directions. After both parties had filed material, email correspondence was sent from my chambers to the parties which asked both parties to advise whether they were content for the Commission to determine the matter on the material filed, or alternatively, if they wished to cross examine witnesses for the other party. Both parties indicated they were content for the Commission to proceed to determine the matter on the papers.

Submissions

The CFMMEU submitted that in the days after the vote process had taken place CFMMEU Official, Dean Mattas, was contacted by members who work for the Applicant with concerns about the process undertaken and the lack of representation. After seeking advice from Mr Dunbar, Mr Mattas asked the members to put their concerns in writing. They agreed on the condition their names be kept anonymous.

The CFMMEU raised the following issues:

· Letters received from members asserted they had never received the Notice of right to be represented; and

· The company had not correctly notified the relevant employees of the start of the access period as required.

Notification of the vote

The CFMMEU submitted that the Applicant has since put forward an explanation for the second issue as it had also been raised by the Commission, but that the response does little to allay the CFMMEU’s concerns, in that the requirement under s.180 of the Act requires that an employer must take all reasonable steps. The CFMMEU contended that mentioning that a vote might take place in approximately a weeks’ time then 13 days later informing people the vote will take place tomorrow would not seem to satisfy the…

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: [2022] FWCA 2102
Decision Date: 27 JUNE 2022

CaseChat Overview and Summary

Glen Eden Constructions Pty Ltd sought approval of an enterprise agreement between the company and its employees, covering the period 2022 to 2026. The application was made to the Fair Work Commission, which has jurisdiction over matters related to workplace relations and enterprise agreements in Australia. The dispute centred on whether the proposed agreement met the legal requirements under the Fair Work Act 2009, particularly in terms of its fairness and compliance with relevant industrial instruments.

The central legal issues addressed by the Commission were whether the agreement provided for minimum terms and conditions of employment, and whether it had been genuinely negotiated between the parties. The Commission needed to determine if the agreement was free from any prohibited content, such as terms that undermined the operation of industrial instruments or allowed for the payment of less than the applicable award or agreement rate. Additionally, the Commission examined whether the agreement satisfied the 'better off overall test', ensuring that employees were not worse off under the proposed agreement compared to their existing terms.

The Fair Work Commission assessed the agreement based on the statutory criteria and found that it met the requirements under the Fair Work Act. The Commission noted that the agreement provided for minimum terms and conditions, did not contain any prohibited content, and satisfied the better off overall test. The Commission was satisfied with the evidence presented that the agreement had been genuinely negotiated and was fair and reasonable. Consequently, the Commission approved the enterprise agreement, finding it to be compliant with the relevant legal standards.

As a result of the Commission's decision, the Glen Eden Constructions Pty Ltd Enterprise Agreement 2022-2026 was approved and will govern the employment terms and conditions between the company and its employees for the specified period. The agreement is now legally binding on both parties, and any disputes arising from its interpretation or application will be subject to the procedures outlined within the agreement and the Fair Work Act.

Orders