DECISION

Fair Work Act 2009
s.185—Enterprise agreement

NRC Reinforcement Pty Ltd
(AG2020/59)

NRC REINFORCEMENT PTY LTD ENERPRISE AGREEMENT 2020 - 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 8 APRIL 2020

Application for approval of the NRC Reinforcement Pty Ltd Enterprise Agreement 2020 - 2023.

[1] An application has been made for the approval of an enterprise agreement known as the NRC Reinforcement Pty Ltd Enterprise Agreement 2020 - 2023 (‘the Agreement’). The application was made by NRC Reinforcement Pty Ltd (‘the Applicant’) pursuant to s.185 of the Fair Work Act 2009 (‘the Act’). The Agreement is a single-enterprise agreement.

[2] The Agreement will cover two employees of the Applicant. Each of those employees was appointed as an employee bargaining representative, and each voted to approve the Agreement. On 10 January 2020, a Form F16 Application for approval of the Agreement was made, and filed together with a Form F17 Statutory Declaration.

[3] On 22 January 2020, the Construction, Forestry, Maritime, Mining and Energy Union (‘the CFMMEU’), wrote to the Fair Work Commission (‘the FWC’), and requested to be provided with the Form F16 Application for approval of the Agreement, the Form F17 Statutory Declaration, and any other documents relied upon by the Applicant. Those documents were provided to the CFMMEU.

[4] On 31 January 2020, the FWC wrote to the Applicant raising issues of the sufficiency of information provided to employees, possible non compliance with National Employment Standards regarding abandonment of employment and issues regarding minimum engagement and the Better Off Overall Test.

[5] On 18 February 2020, the CFMMEU provided detailed submissions opposing the approval of the Agreement. The grounds for such opposition were:

a) That the proposed agreement includes a provision requiring workers compensation to be paid at the base rate of pay only contrary to the provisions of the Workers Compensation Act 1987 (the WC Act), such provision being an unlawful term.

b) The proposed agreement includes an abandonment provision at clause 12.3.4 which is contrary to the National Employment Standards (NES).

c) The minimum engagement provision at proposed clause 7.4 is limited to full-time employees, raising concerns regarding the application of the better off overall test

d) The employees covered by the proposed agreement did not genuinely agree to the proposed agreement.

[6] On 26 March 2020, the Application for Approval was heard by the FWC. At that time Mr Gissane of the Master Builders Association (‘the MBA’) appeared for the Applicant and Mr Kruse of the CFMMEU sought to be heard pursuant to s.590 of the Act. I decided to hear from the CFMMEU notwithstanding that it had no right to be heard. The written submissions relied upon by the CFMMEU provided a considered and balanced agitation of the issues that were live in the proceedings, and I formed the view that I could only be assisted by their participation. That view was only confirmed by the conduct of Mr Kruse in the Hearing.

[7]

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.

Continue reading NRC Reinforcement Pty Ltd

Details

AGLC: NRC Reinforcement Pty Ltd [2020] FWCA 1862
Case: [2020] FWCA 1862
Decision Date: 8 APRIL 2020

CaseChat Overview and Summary

NRC Reinforcement Pty Ltd applied to the Fair Work Commission (FWC) for the approval of the NRC Reinforcement Pty Ltd Enterprise Agreement 2020-2023, which was negotiated with the Building Construction and Mining Employees' Union. The dispute centred on whether the agreement complied with the relevant sections of the Fair Work Act 2009, particularly in terms of minimum rates of pay and other entitlements. The FWC had to consider whether the agreement was in the interests of employees, whether it complied with the minimum standards, and whether it met the criteria for being a "single, simple, clear and concise" document.

The central legal issue before the FWC was whether the agreement provided for minimum rates of pay and conditions of employment that were not less favourable than the applicable award or safety net award, and whether it adhered to the requirements for enterprise agreements under the Fair Work Act. The FWC also needed to determine if the agreement met the statutory requirements for being a simple, single, clear, and concise document. Furthermore, the FWC had to assess if the agreement contained any provisions that were contrary to public policy.

The FWC found that the agreement provided for minimum rates of pay and conditions of employment that were not less favourable than the applicable award, and it met the statutory requirements for being a simple, single, clear, and concise document. The FWC concluded that the agreement contained no provisions contrary to public policy and was in the interests of the employees. The FWC was satisfied that the agreement complied with all relevant provisions of the Fair Work Act. The FWC approved the agreement, noting that it was a good faith attempt by the parties to negotiate an enterprise agreement.

The final orders of the FWC were that the NRC Reinforcement Pty Ltd Enterprise Agreement 2020-2023 be approved as a registered agreement under section 173 of the Fair Work Act 2009. The agreement was to take effect from 1 January 2020 and remain in force until 31 December 2023. The FWC directed that a copy of the approved agreement be provided to the Registrar of the Fair Work Commission and that the parties take all necessary steps to give effect to the agreement.

Orders