Portolesi Nominees Pty Ltd t/a Portolesi Group
[2022] FWCA 268
•10 FEBRUARY 2022
| [2022] FWCA 268 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Portolesi Nominees Pty Ltd t/a Portolesi Group
(AG2021/8153)
Portolesi Nominees Pty Ltd Enterprise Agreement 2021
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT MANSINI | MELBOURNE, 10 FEBRUARY 2022 |
Application for approval of the Portolesi Nominees Pty Ltd Enterprise Agreement 2021.
Portolesi Nominees Pty Ltd has applied for approval of a single enterprise agreement known as the Portolesi Nominees Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).
I have determined to approve the Agreement in accordance with the Act. The reasons for this decision follow.
Context
Since the application was filed, various concerns have been raised by and with the Commission.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was not a bargaining representative for the Agreement but sought to address the Commission in relation to whether the pre-approval requirements were met and the Agreement passes the “better off overall” test. Pursuant to s.590, the CFMMEU was invited to inform the Commission in relation to its specified objections.
The CFMMEU provided submissions and the Applicant provided a response and proposed undertakings. Following a hearing, final undertakings were proposed (Undertakings). The employees covered did not elect to provide any views; the CFMMEU made further brief submissions. There was an invitation but no request to be heard further.
Does the Agreement pass the “better off overall” test?
The assessment of the “better off overall” test will focus attention on matters that are objectively verifiable as relative benefits or detriments. The analysis inquires whether employees would be better off overall under the Agreement than under the relevant award, not better off on a line by line or itemised basis. It is plainly permissible under the Act to trade off or vary Award conditions in making an enterprise agreement.[1]
On an overall assessment of whether employees to be covered would be “better off overall” under the Agreement, including with regard to the more beneficial and the less beneficial terms in the Agreement and the Undertakings and all of the submissions and materials before the Commission, I am satisfied that the Agreement passes the “better off overall” test.
A copy of the Undertakings is attached at Annexure A. 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.
Was the Agreement “genuinely agreed”?
The CFMMEU invited the Commission to find that the Agreement was not “genuinely agreed” because the pre-approval requirement at s.180(5) was not met on account of deficiencies in the explanation of the Agreement and the effect of its terms. The Applicant did not accept this characterisation, contending that the Agreement being a “roll-over” of the predecessor enterprise agreement was persuasive in this respect. However, the Applicant did not purport to have taken steps to explain the differences between the Agreement and the Award or the Award conditions that had changed since the predecessor enterprise agreement was made (including, importantly, at least one such change with which the final proposed Undertakings are directly concerned).
Whilst each case turns on its own facts, an inaccuracy in the explanation may be fatal to the approval of an enterprise agreement or alternatively may be cured by provision of an undertaking which effectively brings the agreement in line with the explanation.[2]
I have had regard to the evidence of the steps taken by the Applicant to explain the terms and conditions of the Agreement to the relevant employees. In the particular circumstances of this matter, I consider that the final proposed Undertakings effectively cure certain identified detriments such that any failure to expressly explain those matters would not prevent approval for the purposes of s.180(5). In all of the circumstances, I am satisfied that the Applicant took all reasonable steps in accordance with s.180(5).
Approval and operation of the Agreement
For the above reasons, and subject to 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.
Noting clause 1.4.6 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act will prevail to the extent of any inconsistency with the Agreement.
Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.
As there were no bargaining representatives appointed to represent the employees covered by the Agreement the Commission took steps to ensure the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.
The Agreement was approved on 10 February 2022 and, in accordance with s.54, will operate from 17 February 2022. The nominal expiry date of the Agreement is 10 February 2026.
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.[3]
DEPUTY PRESIDENT
Annexure A
[1] BOC Limited [2019] FWCA 5544 at [9].
[2] Rigforce Pty Ltd t/a Rigforce [2020] FWC 591; Karijini Rail [2020] FWCFB 958.
[3] The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.
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