One Point Construction Group Pty Ltd T/A One Point Construction Group

[2019] FWC 6678

[2019] FWC 6678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

One Point Construction Group Pty Ltd T/A One Point Construction Group
(AG2019/2240)

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 30 OCTOBER 2019

Application for approval of an enterprise agreement.

[1] An application has been made for approval of an enterprise agreement. The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). The Form F16 – Application for approval of an enterprise agreement (other than a greenfields agreement) indicates that the title of the Agreement is “Approval of an Enterprise Agreement” (the Agreement). It has been made by One Point Construction Group Pty Ltd T/A One Point Construction Group (the Applicant). The Agreement is a single enterprise agreement.

[2] In reviewing the Agreement for approval, the Commission wrote to the Applicant identifying a number of concerns in relation to the Agreement and supporting documentation. The application was not accompanied by a Form F17 – statutory declaration or a signed enterprise agreement (F17). On 26 July 2019, the Applicant provided a F17 and a signed ‘subcontract agreement.’

[3] Upon receipt and further assessment of the abovementioned documents, my chambers wrote to the Applicant outlining further concerns in relation to the application. On both 1 August 2019 and 13 August 2019, I advised the Applicant that I had formed the provisional view that the Agreement is incapable of approval. I advised that various pre-approval steps do not appear to have been complied with. I also noted that the Agreement does not appear to be an “enterprise agreement,” rather it appears to be a subcontracting agreement between two companies which deals with the scope of carrying out work for a specific project.

[4] On 5 September 2019, I wrote to the Applicant advising that if no response is receieved by close of business 9 September 2019, the application may be dismissed with no further notice to the parties. No response has been received.

[5] Section 186 requires, amongst other things, that in order for an enterprise agreement, that not is a greenfields agreement to be approved, the Commission must be satisfied that employees have genuinely agreed to it. Section 186 relevantly provides as follows:

“186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; an

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.”

[6] Section 188 of the Act outlines when employees have genuinely agreed to an enterprise agreement:

“When employees have genuinely agreed to an enterprise agreement

(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.”

[7] In relation to the steps taken to ensure that the relevant employees either were given a copy of the written text of the agreement and any other material incorporated by reference in the agreement during the access period, or had access to a copy of the above materials throughout the access period pursuant to s.180 (2) of the Act, the Applicant advised that it “provided employees with Fairwork online lodgement service links and tips through printed handouts” (sic). This response does not satisfied the requirements of s.180 (2) of the Act.

[8] Section 180 (5) of the Act provides that the employer must take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. The Applicant’s response to question 2.7 of the F17 was that the “Employer had a read-through session with employees after lunch and discussed any questions in the session.” The response does not satisfy the requirements of s.180(5) of the Act.

[9] Accordingly, I am not satisfied that the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. Therefore, the application is dismissed.

COMMISSIONER

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