Primero Group Limited - [2024] FWCA 4206

[2024] FWCA 4206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Primero Group Limited

(AG2024/4139)

PRIMERO ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 29 NOVEMBER 2024

Application for approval of the Primero Enterprise Agreement 2024.

Primero Group Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the Primero Enterprise Agreement 2024 (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 application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (the Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

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.

The below clauses in the Agreement appear to be potentially inconsistent with the National Employment Standards (NES):

(a)Notification of absence: Clause 3.7 of the Agreement appears inconsistent with s 107 of the Act which provides that notice of taking leave must be given as soon as practicable (which may be a time after the leave has started).
(b)Personal leave absence: Clause 14.1.1 of the Agreement provides that in the case of taking personal leave, the employee must provide a medical certificate. This may be more restrictive than s 107(3) of the Act which provides that if required by the employer an employee must give the employer evidence that would satisfy a reasonable person.

(c)Deductions on termination: Clause 17.1.9 of the Agreement states that ‘where the Employee fails to provide the required notice, the Employer may deduct from any monies owing an amount equivalent to the notice not provided.’ As the clause does not limit the monies to wages only, it raises the issue of deductions being made from the employee’s NES entitlements. Furthermore, clause 17.1.12 states that ‘on termination of employment, the Employee shall return all the Employer's property including, but not limited to, uniforms, credit cards, documents and equipment (including but not limited to laptops, mobile phones and any Employer owned tools) prior to receiving any final payments,’ which may preclude an employee from being paid out NES entitlements.

However, noting Clause 1.5.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and NES.

On 18 November 2024, the Commission received a request to redact the names and addresses on the signature page of the Agreement. The basis of the request was that the…

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 Primero Group Limited

Details

AGLC: Primero Group Limited [2024] FWCA 4206
Case: [2024] FWCA 4206
Decision Date: 29 NOVEMBER 2024

CaseChat Overview and Summary

Primero Group Limited was the subject of an application for the approval of the Primero Enterprise Agreement 2024. The Fair Work Commission was asked to consider the proposed agreement, which outlined the terms and conditions of employment for employees of the company. The dispute involved issues related to the fairness and appropriateness of the agreement under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the proposed agreement complied with the statutory requirements under the Act, particularly with regard to the protection of employees' rights and interests, and whether it met the "better off overall test" (BOOT). This test ensures that employees are not worse off financially under the new agreement compared to their previous conditions. The Commission also needed to determine if the agreement had been genuinely negotiated between the employer and the relevant employee representatives.

In delivering its decision, the Commission examined the details of the proposed agreement, including wage rates, leave provisions, and other employment conditions. The Commission found that the agreement was fair and reasonable, and that it complied with the statutory requirements. The Commission determined that the agreement met the BOOT, as it provided employees with improved conditions without reducing their overall financial benefits. Additionally, the Commission was satisfied that the agreement had been genuinely negotiated, as evidenced by the process and documentation provided. As a result, the Commission approved the Primero Enterprise Agreement 2024.

The Fair Work Commission approved the Primero Enterprise Agreement 2024, confirming its compliance with the Fair Work Act 2009 and its adherence to the BOOT. The Commission's decision was based on its finding that the agreement was fair and reasonable, and that it had been genuinely negotiated between the employer and employee representatives. The approval of the agreement now legally binds the parties, establishing the terms and conditions of employment for the employees of Primero Group Limited.

Orders