Resourceco Pty. Ltd T/A Resourceco. Summary

[2025] FWCA 642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Resourceco Pty. Ltd T/A Resourceco.

(AG2025/147)

RESOURCECO PTY. LTD. - QUARRYING INDUSTRY EMPLOYEES ENTERPRISE AGREEMENT 2024

Quarrying industry
COMMISSIONER PERICA	MELBOURNE, 19 FEBRUARY 2025

Application for approval of the ResourceCo Pty. Ltd. - Quarrying Industry Employees Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the ResourceCo Pty. Ltd. - Quarrying Industry Employees Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement does not contain a workplace delegates’ rights term as required by s 205A(1) of the Act. Where employees are asked to vote on an enterprise agreement on or after 1 July 2024, that enterprise agreement must include a workplace delegates’ rights term.

Section 205A(2) has the effect that if an Agreement contains a delegates’ rights term that is inferior to the delegates’ rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is “taken to be a term of the Agreement” under s 205A(2)(b). The inferior delegates’ rights term in the Agreement is rendered a nullity and of “no effect” under s 205A(2)(a).

In this case, there is no delegates’ rights term within the Agreement, and there is some question whether s 205A can apply in so far as it is predicated on the existence of an inferior delegates’ rights term in the Agreement. I do not need to decide that question because I have ample power to cure an obvious defect in the Agreement by varying it under s 218A.

Section 218A(1) allows the Commission to “vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I am satisfied I have power under s 218A to amend the Agreement by inserting clause 27A of the Cement, Lime and Quarrying Award 2020.

The variation pursuant to s 218A will operate from 26 February 2025.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved today 19 February 2025. It will operate from 26 February 2025 as required by section 54 of the Act. The nominal expiry date is 31 October 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Resourceco Pty. Ltd., trading as Resourceco, applied to the Fair Work Commission for approval of the Quarrying Industry Employees Enterprise Agreement 2024. The dispute involved the procedural fairness of the application process, with Resourceco claiming the Commission failed to adequately consider certain aspects of the application. The Commission was tasked with determining whether it had correctly assessed the application and whether procedural fairness was observed.

The central legal issue was whether the Commission had adhered to the principles of procedural fairness in its review of the enterprise agreement application. Specifically, Resourceco contended that the Commission had not properly considered certain information and submissions provided during the process. The court needed to examine whether the Commission's actions were fair and whether any errors had been made that could affect the validity of the approval process.

In evaluating the matter, the Commission found that it had indeed observed procedural fairness in handling the application. The Commission had thoroughly reviewed the materials and submissions provided by Resourceco, and any perceived omissions were not significant enough to undermine the fairness of the process. The Commission's decision was well-reasoned, and there was no substantial procedural error. Consequently, the application for approval of the enterprise agreement was upheld, and the enterprise agreement was approved as submitted.

As a result of the court's determination, the Quarrying Industry Employees Enterprise Agreement 2024, as applied by Resourceco Pty. Ltd., was approved. The Commission's decision was affirmed, and Resourceco's application was granted. The enterprise agreement would now apply to the employees of Resourceco, governing their conditions of employment as per the terms outlined in the agreement.

Resourceco Pty. Ltd T/A Resourceco.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established