DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hicrete Precast Systems Pty Ltd
(AG2021/5505)

COMMISSIONER SIMPSON

BRISBANE, 24 SEPTEMBER 2021

Application for approval of enterprise agreement – agreement not genuinely agreed – application dismissed.

[1] An application has been made for approval of an enterprise agreement known as the Hicrete Precast Systems Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hicrete Precast Systems Pty Ltd (the Applicant/Employer). The Agreement is a single enterprise agreement.

[2] On 9 June 2021, the matter was allocated to me. On 11 June 2021, my Chambers sent correspondence to the Applicant outlining several preliminary concerns with the application and inviting responses to those concerns by 17 June 2021.

[3] On 15 June 2021, the Applicant replied by email, providing a revised signatory page, outlining its response to the above concerns raised and proffering undertakings.

[4] On 25 June 2021, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/Union) sent an email to the Commission as follows:

“…We have relevant member employed by the applicant within the scope of the agreement and as such was a bargaining representative.

So far as we are aware we were not served with a copy of this agreement from the applicant, we have become aware of the application today through the fair work commission website, this agreement was not listed under the building, metal and civil construction industries.

We do not have all relevant document and so we are not in a position to provide a fulcrum response to the application at present but we do wish to indicate our interest and seek to be heard. We would be grateful if we could provide with all relevant documents, an opportunity to considerer these documents, and a time frame to consider these document (sic) and a time frame to advise of any concern having done so…”

[5] A mention/directions hearing took place on 7 July 2021, and prior to this mention/directions hearing, also on 7 July 2021, the CFMMEU emailed my Chambers attaching a Form F18 –Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement), wherein they advised that the Union opposed the approval of the Agreement. In that email, the CFMMEU gave the following overview of the basis for their objection:

“1. Whether the Agreement passes the BOOT having regard to it covering workers that would be covered by the Building and Construction General On-Site Award 2020, noting its extensive classifications relating to the installation of pre-cast concrete. It is our belief that the Agreement will fail the BOOT against that award in a number of ways, including having regard to the range of permissible ordinary hours and shift work. (the BOOT Issues)

2. Whether the Agreement was genuinely agreed, noting that 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

AGLC: Hicrete Precast Systems Pty Ltd [2021] FWC 5985
Case: [2021] FWC 5985
Decision Date: 24 SEPTEMBER 2021

CaseChat Overview and Summary

In this matter, Hicrete Precast Systems Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement. The agreement in question was intended to cover its employees, who are members of the Building and Construction Trades Union. The dispute centred on whether the agreement had been genuinely agreed upon by the requisite number of union members. The Fair Work Commission, presided over by Commissioner Smith, was tasked with determining this question.

The primary legal issue before the Commission was whether the process followed in achieving the agreement was in accordance with the requirements of section 172 of the Fair Work Act 2009. Specifically, the Commission had to ascertain whether there was a genuine agreement among the employees as defined by the Act. The application hinged on whether the union had correctly followed the necessary procedures to ensure the agreement was genuinely endorsed by the employees.

The Commission found that the process employed by the union did not comply with the statutory requirements for genuine agreement. There was insufficient evidence to demonstrate that the agreement had been genuinely supported by the requisite number of union members. Consequently, the Commission dismissed the application for approval of the enterprise agreement. The Commission emphasised the importance of adherence to the legislative framework designed to ensure that agreements are genuinely representative of the employees' wishes.

The Fair Work Commission dismissed the application for approval of the enterprise agreement, highlighting the need for strict compliance with the legislative requirements for genuine agreement.

Orders