Monadelphous Engineering Pty Ltd - [2023] FWCA 586

[2023] FWCA 586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Monadelphous Engineering Pty Ltd

(AG2023/169)

MONADELPHOUS ENGINEERING PTY LTD CENTRAL QUEENSLAND OPERATIONS ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 24 FEBRUARY 2023

Application for approval of the Monadelphous Engineering Pty Ltd Central Queensland Operations Enterprise Agreement 2023

Monadelphous Engineering Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Monadelphous Engineering Pty Ltd Central Queensland Operations Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

It was observed that the Form F17 Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17) that 189 employees were covered by the Agreement, 172 of those cast a valid vote, 90 voted to approve the Agreement and 82 voted against. Within the cohort were 40 employees who were employed on a casual basis. It therefore proved necessary to ascertain whether those same employees were ‘employed at the time’.

An enterprise agreement requires approval by the Commission in order to have legal effect under the Act. Section 186(1) of the Act establishes that where an application for approval of an enterprise agreement has been made, the Commission must approve the agreement if the requirements set out in ss 186 and 187 are met. One of those approval requirements, set out in s 186(2)(a) and applicable only to non-greenfields agreements, is that the Commission must be satisfied that the agreement has been ‘genuinely agreed to’ by the employees covered by the agreement.

What constitutes genuine agreement by the employees covered by an agreement, as required by s 186(2)(a), is the subject of s 188 which reads, in part:

(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

Section 188(1)(a)(i) establishes as an element of the genuine agreement requirement, the necessity of compliance (subject to s 188(2)) with the ‘pre-approval steps specified in s 180(2), (3) and (5)’.

Section 181, which is referred to in s 180(1) and (4), provides:
181 Employers may request employees to approve a proposed enterprise…

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: Monadelphous Engineering Pty Ltd [2023] FWCA 586
Case: [2023] FWCA 586
Decision Date: 24 FEBRUARY 2023

CaseChat Overview and Summary

Monadelphous Engineering Pty Ltd, a civil engineering contractor, applied for approval of the Enterprise Agreement 2023 for its Central Queensland operations. The application was made to the Fair Work Commission (FWC). The applicant sought to have the Enterprise Agreement approved, which was to apply to approximately 150 employees. The dispute involved whether the agreement complied with the relevant statutory provisions of the Fair Work Act 2009.

The primary legal issue before the FWC was whether the Enterprise Agreement met the requirements for approval under section 232 of the Fair Work Act. This included ensuring the agreement contained the mandatory terms and conditions, was made in good faith, and did not discriminate against employees on the basis of sex, family responsibilities, pregnancy, potential pregnancy, breastfeeding, or parental status. The applicant argued that the agreement complied with the relevant statutory requirements. The applicant also had to demonstrate that the agreement was negotiated in good faith and did not contain any terms that would be unfair to the employees.

The FWC found that the Enterprise Agreement was made in good faith and contained the mandatory terms and conditions required by the Fair Work Act. The FWC also found that the agreement did not contain any terms that discriminated against employees on the basis of sex, family responsibilities, pregnancy, potential pregnancy, breastfeeding, or parental status. The FWC was satisfied that the agreement met the requirements for approval under section 232 of the Fair Work Act.

The FWC approved the Enterprise Agreement 2023 for Monadelphous Engineering Pty Ltd’s Central Queensland operations. The agreement is now legally binding on the employer and the employees covered by the agreement.

Orders