Narran Industries Pty Ltd - [2024] FWCA 3189

[2024] FWCA 3189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Narran Industries Pty Ltd

(AG2024/3024)

NARRAN INDUSTRIES PTY LTD ENTERPRISE AGREEMENT 2024 - 2028

Building, metal and civil construction industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 5 SEPTEMBER 2024

Application for approval of the Narran Industries Pty Ltd Enterprise Agreement 2024 - 2028

Introduction

Narran Industries Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Narran Industries Pty Ltd Enterprise Agreement 2024 - 2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Genuine Agreement

Section 188(2) of the Act provides:

The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:
(a) have a sufficient interest in the terms of the agreement; and
(b) are sufficiently representative, having regard to the employees the agreement is expressed to cover.
Note: In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

Principle 17 of the Statement of Principle on Genuine Agreement (the Statement) sets out a number of matters which the Commission is required to take into account when considering whether employees have a sufficient interest in the terms of an enterprise agreement and whether the employees are sufficiently representative which include the extent to which employees are entitled to vote on the enterprise agreement are employed across the full range of classifications in the agreement and types of employment in the agreement.
The Agreement applies to employees of the Employer engaged on a full-time, part-time or casual basis in the following classifications:

Level 1 - Labourer performing a range of labouring tasks up to and including work performed to Award CW1(d) level
Level 2 - Excavator Operators up to and including 10 tonne capacity
Level 3 - Excavator Operators in excess 10 tonne capacity

At the time of the making of the Agreement, the Employer had two employees who were employed on a casual basis as Excavator Operators. The Employer submits that these employees are employed on a casual basis by agreement and that they may wish to convert to full-time or part-time employment in the future. Furthermore, future employees may want the option of being employed on a full time, part time, or casual basis.

The Employer submits that it is not unusual for a small construction contracting operation to have plant operators assisted by labourers, or to execute excavation contract works where plant capacity in excess…

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: Narran Industries Pty Ltd [2024] FWCA 3189
Case: [2024] FWCA 3189
Decision Date: 5 SEPTEMBER 2024

CaseChat Overview and Summary

Narran Industries Pty Ltd was the subject of an application for the approval of an enterprise agreement. The applicant sought to have the agreement, which was negotiated between the employer and its employees, approved by the Fair Work Commission. The dispute involved the terms and conditions of employment, which were to be governed by the proposed agreement. The court was required to assess whether the agreement complied with the relevant statutory requirements and whether it was in the best interests of the employees.

The primary legal issues before the court were whether the agreement met the necessary standards set out in the Fair Work Act 2009, including whether it provided for a fair and efficient workplace, whether it complied with the good faith bargaining requirements, and whether it included provisions that were necessary to protect employees' rights and interests. Additionally, the court had to consider if the agreement contained any provisions that might be deemed unfair or contrary to public policy.

The court examined the agreement in detail, considering the terms and conditions it proposed. The court found that the agreement was the product of good faith bargaining and met the statutory requirements. The provisions of the agreement were fair and balanced, providing adequate protections for the employees while also considering the needs of the employer. The court was satisfied that the agreement was in the best interests of the employees and would promote a fair and efficient workplace. Consequently, the court approved the Narran Industries Pty Ltd Enterprise Agreement 2024 - 2028.

Orders