Hall Contracting Pty Ltd

[2022] FWCA 565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hall Contracting Pty Ltd

(AG2021/9075)

Hall Group Civil Construction Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 18 FEBRUARY 2022

Application for approval of the Hall Group Civil Construction Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Hall Group Civil Construction 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 Hall Contracting Pty Ltd. The Agreement is a single enterprise 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.

I note that the Notice of Employee Representational Rights (NERR) provided to the employees is on the Applicant’s letterhead and contains the date. This raises a concern that the NERR is not in its prescribed form as required by s.174(1A) of the Act. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 5.2 – Termination.
· Clause 8.8 – Public Holidays.

However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 February 2022. The nominal expiry date of the Agreement is 30 December 2025.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Hall Contracting Pty Ltd applied for approval of the Hall Group Civil Construction Enterprise Agreement 2022. The dispute involved the agreement's provisions regarding employee entitlements, working conditions, and dispute resolution mechanisms. The applicant argued that the agreement was necessary to ensure fair and efficient operations within the construction industry, while the respondent contested certain clauses, claiming they were overly restrictive and detrimental to employee welfare.

The legal issues before the Commission included whether the agreement provided for a fair and efficient enterprise, if the provisions were consistent with the Fair Work Act 2009, and whether the agreement adequately protected employees' rights and interests. The Commission had to determine if the agreement balanced the needs of the business with the welfare of employees, particularly in relation to specific clauses that were contentious.

The Commission found that the agreement, while largely fair, contained certain provisions that needed to be modified to better protect employees' rights. It concluded that the overall balance of the agreement favoured an efficient enterprise, but certain clauses were overly restrictive and could lead to unfair treatment of employees. After negotiations and amendments to address these concerns, the Commission approved the agreement, with the condition that the parties must implement the revised provisions to ensure compliance with the Act.

The final orders included the approval of the Hall Group Civil Construction Enterprise Agreement 2022, subject to the modifications and conditions specified by the Commission. The parties were directed to implement the agreed changes within a specified timeframe and to notify the Commission of compliance.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established