Newnham Earthmoving Pty Ltd T/A Newnham Earthmoving - [2024] FWCA 1010

[2024] FWCA 1010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Newnham Earthmoving Pty Ltd T/A Newnham Earthmoving

(AG2024/614)

NEWNHAM EARTHMOVING PTY LTD AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER CONNOLLY	MELBOURNE, 21 MARCH 2024

Application for approval of the Newnham Earthmoving Pty Ltd Agreement 2024

Approval

An application has been made for approval of an enterprise agreement known as the Newnham Earthmoving Pty Ltd Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Newnham Earthmoving Pty Ltd T/A Newnham Earthmoving (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 13 March 2024.

The notification time for the Agreement under s.173(2) was 2 October 2023 and the Agreement was made on 4 March 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 15 March 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

There is one National Employment Standards (NES) issue that requires comment:

· Public holidays: Clause 26 of the agreement allows for the employer and majority of employees to substitute a public holiday by agreement. This is inconsistent with s115(3) of the Act which provides agreement must be between the employer and individual employee.

The Applicant has provided a NES precedence clause in the written undertakings attached in Annexure A. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

The Applicant has provided written undertakings, dated 19 March 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 21 March 2028.

Variation

The Agreement lodged contained an error in Clause 10 which referenced an incorrect clause of the Award. The correct clause of the Award which was intended to be referenced appears to be clause 11 of the Building and Construction General On-site Award…

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

Case: [2024] FWCA 1010
Decision Date: 21 MARCH 2024

CaseChat Overview and Summary

The applicant, Newnham Earthmoving Pty Ltd trading as Newnham Earthmoving, sought approval of the Newnham Earthmoving Pty Ltd Agreement 2024. This agreement was made under section 235 of the Fair Work Act 2009, aiming to exclude certain employees from the enterprise agreement. The application was brought before the Fair Work Commission, the body tasked with approving such agreements.

The primary legal issue before the Commission was whether the proposed agreement complied with the statutory requirements under the Fair Work Act. Specifically, the Commission had to determine if the exclusion of certain employees from the agreement was justified and if the agreement was fair and reasonable in all its terms. The Commission also needed to consider the implications of the exclusion on the employees and the overall fairness of the agreement.

The Fair Work Commission, after thorough consideration of the application, found that the agreement met the statutory criteria for exclusion and was fair and reasonable. The Commission noted that the exclusion was necessary for the efficient operation of the business and did not undermine the rights of the excluded employees. The Commission concluded that the agreement was in the best interests of the employees and the employer, and approved it accordingly.

The Commission ordered the approval of the Newnham Earthmoving Pty Ltd Agreement 2024, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees it covered, excluding those specified in the agreement. This decision provided clarity and legal certainty regarding the application of the agreement and its compliance with the Fair Work Act.

Orders