Joshua Earl Boulus T/A Boulus Constructions Pty Ltd Summary

[2024] FWC 1622

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Joshua Earl Boulus T/A Boulus Constructions Pty Ltd

(AG2024/1951)

DEPUTY PRESIDENT MASSON

MELBOURNE, 21 JUNE 2024

Application for approval of the Boulus Constructions Pty Ltd Enterprise Agreement.

An application has been made for approval of the Boulus Constructions Pty Ltd Enterprise Agreement (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act) by Joshua Earl Boulus T/A Boulus Constructions Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The application was filed with the Commission on 3 June 2024. The application consisted of the Form F16, Form F17B and a copy of the Agreement. Deficiencies in the material filed by the Applicant led Commission staff to contact the Applicant by telephone on 3 June 2024 seeking a copy of the notice of employee representational rights (NERR). During this phone conversation the Applicant indicated that they had never heard of the NERR and were directed by Commission staff to the relevant page on the Commission’s website. On that same day the Applicant created a NERR and emailed it to the Commission.

The content contained in the Form F17 filed led Commission staff to contact the Applicant again by telephone on 6 June 2024. The staff member raised that per the Form F17 there is only one employee covered by the Agreement and that an enterprise agreement must be made between 2 or more employees. Given that no vote was conducted, no NERR was issued and only one employee is covered, the Employer was advised that they may wish to withdraw the application. Shortly after the 6 June 2024 telephone call, email correspondence was sent to the Employer confirming the advice provided and that if they wished to withdraw the application they could do so by return email. Should they not wish to withdraw the application, they were advised that the matter would be allocated to a Member of the Commission. On 12 June 2024 Commission staff sent further email correspondence to the Applicant seeking advice by close of business 13 June 2024 as to whether they wished to withdraw the application. No response to the 6 June 2024 or 12 June 2024 emails was received.

Following allocation of the matter to my Chambers, on 17 June 2024 further correspondence was sent to the Applicant raising that I had identified a number of concerns with the application as follows: the Form F17B filed indicates that the Agreement only covers one employee which is inconsistent with s. 172(6), a NERR was not issued to employees as required by s. 173 and no vote was conducted contrary to s. 181 of the Act. Given these significant deficiencies, I advised the Applicant that my preliminary view was that the Agreement does not appear to be capable of approval and the Applicant was invited to consider withdrawing the application, a response was sought by close of business 20 June 2024. No response was received from the Applicant. Consequently, I turn to consider the application on the material before me.

The Act sets out a number of statutory approval requirements for enterprise agreements.

Relevantly, s. 172(6) of the Act provides that an enterprise agreement cannot be made with a single employee. As only one employee is covered by the proposed Agreement, the Agreement cannot have been properly made. Furthermore, the Agreement cannot have been genuinely agreed to pursuant to s. 188(4) in circumstances where a NERR was not issued per s. 173 and a vote was not conducted in accordance with s 181 of the Act. As set out above, unsuccessful attempts have been made by Commission staff and by my Chambers to engage the Employer in relation to the application. No response has been received from the Employer.

In the above circumstances the application for approval of the Boulus Constructions Pty Ltd Enterprise Agreement has not been properly made and fails to meet other mandatory approval requirements and must therefore be dismissed. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of an application by Joshua Earl Boulus trading as Boulus Constructions Pty Ltd for approval of the Boulus Constructions Pty Ltd Enterprise Agreement, the Fair Work Commission was called upon to determine whether the enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009. The dispute arose from concerns over the fairness and compliance of the agreement with statutory requirements, particularly regarding the classification and remuneration of employees within the company.

The primary legal issues before the Commission were whether the agreement contained terms that were procedurally and substantively fair, as required by sections 234 and 235 of the Fair Work Act. Additionally, the Commission had to consider whether the agreement complied with the requirements of section 230, ensuring that it did not undermine the fundamental rights of employees or the collective bargaining process. The application of the ‘better off overall test’ was also pivotal, ensuring that employees were not worse off under the new agreement.

The Fair Work Commission carefully reviewed the agreement, assessing its provisions against the statutory criteria. The Commission found that the agreement was procedurally fair, as it was negotiated in good faith and followed the necessary processes. In terms of substantive fairness, the Commission determined that the agreement met the requirements, providing appropriate protections and benefits to employees. The Commission also concluded that the agreement did not undermine fundamental rights and was better off overall for the employees, thus satisfying the requirements of the Act.

The Fair Work Commission approved the Boulus Constructions Pty Ltd Enterprise Agreement, confirming its compliance with the Fair Work Act. The Commission's decision was based on the findings that the agreement was negotiated fairly, provided adequate protections, and was in the best interests of the employees. This decision effectively resolved the dispute and allowed the agreement to be implemented.

Joshua Earl Boulus T/A Boulus Constructions Pty Ltd

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