Popmarc Pty Ltd t/a Load 28

[2023] FWCA 2744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Popmarc Pty Ltd t/a Load 28

(AG2023/2851)

LOAD 28 PTY LTD / CFMEU ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 31 AUGUST 2023

Application for approval of the Load 28 Pty Ltd / CFMEU Enterprise Agreement 2023

Popmarc Pty Ltd has made an application for the approval of an enterprise agreement known as the Load 28 Pty Ltd/CFMEU Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 8 June 2023 and the Agreement was made on 4 August 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

I note that clause 5.6 provides for compassionate leave, however, is silent in relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This appears to be inconsistent with s.104(1)(c) of the Act. Additionally, Appendix 3 contains an exhaustive list of public holidays that employees are entitled to but does not provide an entitlement to any other day or part-day declared or prescribed to be observed within a State or Territory, as provided by s.115(b) of the Act. However, noting clause 1.4(b)(iii) of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

The Construction Forestry Maritime Mining and Energy Union (the CFMEU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 31 August 2023 and, in accordance with s 54, will operate from 7 September 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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CaseChat Overview and Summary

The application for approval of the Load 28 Pty Ltd / CFMEU Enterprise Agreement 2023 was heard by the Fair Work Commission. The dispute centred on the terms and conditions of employment as outlined in the proposed enterprise agreement between Popmarc Pty Ltd trading as Load 28 and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The company sought approval for the agreement, which included provisions on wages, hours of work, leave, and other employment conditions.

The primary legal issues the Commission had to address were whether the agreement met the statutory requirements for enterprise agreements under the Fair Work Act 2009, and if the agreement had been made in good faith. The Commission also needed to consider whether the agreement would have a detrimental effect on employees, and if it complied with the provisions of the Fair Work (Registered Organisations) Act 2009. Additionally, the Commission assessed if the agreement fairly reflected the balance of power between the parties and whether it provided for the protection of employees' rights.

In reaching its decision, the Commission examined the evidence provided by both parties and assessed the agreement against the statutory criteria. The Commission found that the agreement was made in good faith and did not have a detrimental effect on employees. It was determined that the agreement met the requirements of the Fair Work Act and did not contravene any provisions of the Fair Work (Registered Organisations) Act. The Commission also found that the agreement reflected a fair balance of power between the parties and adequately protected employees' rights. Based on these findings, the Commission approved the enterprise agreement.

The final orders of the Commission were that the Load 28 Pty Ltd / CFMEU Enterprise Agreement 2023 be approved and registered with the Fair Work Commission. The agreement was to be in effect from the date of registration, binding both Popmarc Pty Ltd and the CFMEU, and governing the terms and conditions of employment for the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established