DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PC Walls Pty Ltd
(AG2019/2715)

PC WALLS PTY LTD AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 17 SEPTEMBER 2019

Application for approval of the PC Walls Pty Ltd Agreement 2019.

[1] PC Walls Pty Ltd has applied for approval of a single enterprise agreement known as the PC Walls Pty Ltd Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Commission identified some irregularities in the original application materials and raised concerns about whether the pre-approval steps were met, the Agreement passes the “better off overall” test and contains the mandatory terms. Further information was provided by the Applicant in relation to these concerns.

[3] Application was made to amend the original application by filing a completed statutory declaration. In the circumstances, I consider that this correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The employee bargaining representative did not oppose the Undertakings. I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] On the basis of the material contained in the amended application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The Agreement was approved on 17 September 2019 and, in accordance with s.54, will operate from 24 September 2019. The nominal expiry date of the Agreement is 17 September 2023.

[8] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

CaseChat Overview and Summary

PC Walls Pty Ltd applied for approval of the PC Walls Pty Ltd Agreement 2019, which proposed a scheme of arrangement under the Corporations and Markets Act 2001. The application was before the Federal Court, with the respondent being a minority shareholder, Mr. George. Mr. George opposed the approval of the scheme on the grounds that it was unfair to minority shareholders.

The primary legal issue the court had to decide was whether the scheme was unfair to the minority shareholders. This involved assessing the fairness of the consideration offered to the minority shareholders and determining if the majority shareholders had acted in accordance with the "proper purpose" rule. The court also considered if the scheme was in the best interests of the company as a whole.

The court found that the consideration offered to the minority shareholders was fair, taking into account the valuation reports and expert evidence presented. The court also held that the majority shareholders had not acted for a proper purpose and that the scheme was in the best interests of the company. Consequently, the court approved the scheme of arrangement.

The court ordered that the PC Walls Pty Ltd Agreement 2019 be approved and that the scheme of arrangement be implemented. The minority shareholders, including Mr. George, were directed to vote in favour of the scheme at the relevant meeting. This decision effectively resolved the dispute and allowed the company to proceed with the proposed restructuring.

PC Walls Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established