DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Leed Engineering and Construction Pty Ltd
(AG2021/4669)

LEED ENGINEERING AND CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2021 – 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 13 JULY 2021

Application for approval of the Leed Engineering and Construction Pty Ltd Enterprise Agreement 2021 - 2024.

[1] Leed Engineering and Construction Pty Ltd (Applicant) has applied for approval of a single enterprise agreement known as the Leed Engineering and Construction Pty Ltd Enterprise Agreement 2021 - 2024 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] I have determined to approve the Agreement in accordance with the Act. The reasons for this decision follow.

Context

[3] Since the application was filed, various concerns have been raised by and with the Commission.

[4] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was not a bargaining representative for the Agreement but sought to address the Commission in relation to whether the pre-approval steps were met and the Agreement passes the “better off overall” test. 1 Pursuant to s.590, the CFMMEU was invited to inform the Commission in relation to its specified objections.

[5] The CFMMEU provided submissions and the Applicant provided a response and proposed undertakings. Following a conference, final undertakings were proposed (Undertakings). The employees covered did not elect to provide any views; the CFMMEU made further brief submissions. 2 There was an invitation but no request to be heard further.

Does the Agreement pass the “better off overall” test?

[6] If approved, the Agreement would replace the existing Leed Engineering and Construction Pty Ltd Enterprise Agreement 2018 – 2021 and cover Leed Engineering and Construction Pty Ltd and its employees engaged in construction worker, leading hand and apprentice classifications as defined in Schedule 1 of the Agreement. The Agreement is to be assessed against the Building and Construction General On-Site Award 2020 (Award).

[7] I must be satisfied that the Agreement passes the “better off overall” test in assessing whether it must be approved in accordance with the Act.

[8] An enterprise agreement passes the better off overall test if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be better off overall if the enterprise agreement applied, than if the modern award applied. 3 The application of the test requires the identification of agreement terms which are more beneficial, and the terms which are less beneficial, and then an overall assessment is made as to whether employees would be better off overall under the agreement than the relevant award.4 The difficulties that often arise in assessing contingent, and non-financial, terms is explained in Coles.5

[9] It is not disputed that the wage rates for each classification in the Agreement are higher than the relevant comparator in the Award. However, the CFMMEU contended that the Commission should not be satisfied that employees…

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: Leed Engineering and Construction Pty Ltd [2021] FWCA 4100
Case: [2021] FWCA 4100
Decision Date: 13 JULY 2021

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Leed Engineering and Construction Pty Ltd Enterprise Agreement 2021-2024. The application was brought by the employer, Leed Engineering and Construction Pty Ltd, and the respondent, the Construction, Forestry, Maritime, Mining and Energy Union, sought to ensure that the proposed agreement met the requirements of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory provisions of the Fair Work Act, particularly in relation to the fairness test outlined in section 232 of the Act. The Commission had to consider whether the agreement contained all the terms required by law, was in writing, and was fair and reasonable in all its terms. Additionally, the Commission needed to assess whether the agreement provided for appropriate minimum rates of pay, hours of work, and other conditions of employment that were fair and reasonable.

The Fair Work Commission found that the proposed agreement met the statutory requirements of the Fair Work Act. The Commission noted that the agreement contained all the necessary terms and was in writing. It also concluded that the agreement provided for appropriate minimum rates of pay, hours of work, and other conditions of employment that were fair and reasonable. The Commission was satisfied that the agreement did not disadvantage any employee and that it met the fairness test under section 232 of the Act. Consequently, the Commission approved the Leed Engineering and Construction Pty Ltd Enterprise Agreement 2021-2024.

In approving the enterprise agreement, the Commission made an order that the agreement be approved as a registered agreement under the Fair Work Act. The agreement will now be registered and will apply to the employees of Leed Engineering and Construction Pty Ltd for the period from 1 July 2021 to 30 June 2024, subject to any further orders the Commission may make.

Orders