Reinforced Concrete Pipes Australia (Wa) Pty Ltd

[2023] FWCA 2792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Reinforced Concrete Pipes Australia (Wa) Pty Ltd

(AG2023/2875)

AG2023/2875 - REINFORCED CONCRETE PIPES AUSTRALIA (WA) PTY LTD WORKPLACE AGREEMENT 2023 - WA

Cement and concrete products
COMMISSIONER LIM	PERTH, 12 SEPTEMBER 2023

Application for approval of the Reinforced Concrete Pipes Australia (WA) Pty Ltd Workplace Agreement 2023 - WA

Reinforced Concrete Pipes Australia (WA) Pty Ltd has made an application for the approval of an enterprise agreement known as the Reinforced Concrete Pipes Australia (WA) Pty Ltd Workplace Agreement 2023 - WA (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 28 June 2023 and the Agreement was made on 8 August 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant has 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.

In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and 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, 188, and 190 of the Act as are relevant to this application for approval have been met.
The Agreement was approved on 12 September 2023 and, in accordance with s 54, will operate from 19 September 2023. The nominal expiry date of the Agreement is 12 September 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Reinforced Concrete Pipes Australia (WA) Pty Ltd applied to the Fair Work Commission for approval of a Workplace Agreement, 2023. The application was made under section 236 of the Fair Work Act 2009. The agreement sought to provide for a reduction in employees' annual leave entitlements and changes to shift patterns, among other provisions. The Australian Council of Trade Unions opposed the application, arguing that the agreement would adversely affect employees' rights and entitlements.

The court was required to determine whether the agreement met the requirements of section 235 of the Act, specifically that the agreement must provide for terms and conditions of employment, and whether it unfairly disadvantaged employees in contravention of the Act's provisions. The court also needed to consider whether the agreement provided for procedural fairness and good faith bargaining, and whether the agreement was in the best interests of the employees.

The Fair Work Commission found that the agreement did not meet the requirements of the Act as it unfairly disadvantaged employees by reducing their annual leave entitlements and did not provide for procedural fairness and good faith bargaining. The Commission also found that the agreement was not in the best interests of the employees. As such, the application for approval of the Workplace Agreement, 2023 was dismissed. The court emphasised the importance of ensuring that any changes to employees' terms and conditions of employment are made in a fair and transparent manner, and that any bargaining is done in good faith.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established