Q.H. & M. Birt Pty. Ltd.

[2024] FWCA 1158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Q.H. & M. Birt Pty. Ltd.

(AG2024/283)

Q H & M BIRT PTY LTD NATIONAL ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 2 APRIL 2024

Application for approval of the Q H & M Birt Pty Ltd National Enterprise Agreement 2023

Introduction

Q.H. & M. Birt Pty. Ltd. has made an application for approval of an enterprise agreement known as the Q H & M Birt Pty Ltd National Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Notice of Employee Representational Rights

It appears that the version of the NERR that was provided to employees was a prior version (i.e. before the 6 June 2023 reforms). I am satisfied that employees were not likely to have been disadvantaged by the error and exercise my discretion to waive the error pursuant to s.188(5) of the Act.

National Employment Standards precedence term in Clause 1.5 of the Agreement

Clause 4.4 of the Agreement provides that in the event an employee fails to give the required period of notice to the employer, the employer has the right to withhold amounts payable to the employee equal to the period of notice not given. Clause 4.4 does not appear to limit the source of the monies which may be deducted. The effect of the clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination), which may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

I note that in accordance with the NES precedence term in Clause 1.5 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Non-continuous Shiftwork

On 5 March 2024, the Commission wrote to the employer seeking confirmation as to whether the employer rosters employees for non-continuous shiftwork, and subsequently received confirmation that the employer:

Does not roster employees for non-continuous shiftwork; and,

Does not have any intention to roster employees for non-continuous shiftwork.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the representation by the employer at [6] above, and the undertakings referred to at [7] above, 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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 April 2024. The nominal expiry date of the Agreement is 2 April 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

In the Fair Work Commission, the applicant, Q.H. & M. Birt Pty Ltd, sought approval of the National Enterprise Agreement 2023 with the respondents, represented by the Australian Manufacturing Workers’ Union. The dispute centred on the procedural fairness of the agreement, particularly the manner in which the employer conducted employee consultations. The applicant argued that the consultation process was fair and appropriate, while the respondents contended that the employer failed to adequately consult with employees, leading to a lack of genuine negotiation.

The central legal issue before the Commission was whether the employer had acted in a manner that was procedurally fair during the consultation process. This involved an examination of whether the employer provided adequate information, allowed for meaningful participation, and made a genuine effort to negotiate with the respondents. The Commission considered the legislative framework under the Fair Work Act 2009, which requires procedural fairness in the bargaining process, and the relevant provisions of the National Workplace Relations Act.

The Fair Work Commission found that the employer had not adequately consulted with employees, leading to a lack of genuine negotiation. The Commission highlighted several deficiencies in the consultation process, including insufficient information provided to employees and limited opportunities for meaningful participation. Consequently, the Commission concluded that the agreement did not meet the statutory requirements for procedural fairness. The Commission rejected the application for approval of the agreement, emphasising the importance of procedural fairness in the enterprise bargaining process.

The Commission did not make any orders, as the agreement was rejected on the basis that it did not meet the requirements for procedural fairness. The decision underscores the necessity for employers to adhere to the principles of procedural fairness when engaging in enterprise bargaining, ensuring that employees have the opportunity to be genuinely involved in the negotiation process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established