Retaining Solutions Design Construct Pty Ltd T/A Retaining Solutions Design Construct Pty Ltd - [2023] FWC 3200

[2023] FWC 3200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 and 226—Enterprise agreement

Retaining Solutions Design Construct Pty Ltd T/A Retaining Solutions Design Construct Pty Ltd

(AG2023/3762)

Building, metal and civil construction industries
COMMISSIONER CRAWFORD	SYDNEY, 1 DECEMBER 2023

Application for termination of the Retaining Solutions Design Construct Pty Ltd Enterprise Agreement 2016 – 2020 – meaning of “unfair to employees” - insufficient evidence and material - application dismissed

Background

An application has been made by Retaining Solutions Design Construct Pty Ltd (Retaining Solutions) for the termination of the Retaining Solutions Design Construct Pty Ltd Enterprise Agreement 2016 – 2020 (the Agreement) pursuant to ss.225 and 226 of the Fair Work Act 2009 (Cth) (FW Act). The Agreement’s nominal expiry date is 14 March 2020. The Form F24B application was filed on 17 October 2023 and was accompanied by a Form F24C declaration made by Joanne Withnall (HR and Payroll Officer) on the same date.

The Form F24B identified in part 2.1 that there are 41 employers covered by the Agreement and in part 2.3 indicated Retaining Solutions is not one of the 41 employers. Neither statement is correct. The Agreement covers only one employer and that is Retaining Solutions.

The Form F24C declaration stated in part 2.2 that there are no employees covered by the Agreement but then stated in part 5.2 that there are 33 part-time employees, nine casual employees, seven employees under 21 years of age and four employees over 45 years of age covered by the Agreement.

The Form F24C identified that Retaining Solutions is relying on s.226(1)(a) to terminate the Agreement on the ground of unfairness for the employees covered. The declaration stated in part 2.1:

“Through better off testing, we have found it is better for our employees to work under the Onsite Building and Construction Award 2020 (sic). Changes in living standards, pay rates and allowances are updated annually within the award and clearly considers the best situation for our employees.”

I listed the application for Mention/Directions via video on 26 October 2023. Ms Withnall and Jennifer Caldwell (Finance Manager) appeared for Retaining Solutions. During the Mention/Directions hearing, Ms Withnall and Ms Caldwell confirmed there are employees covered by the Agreement. I indicated I was required to take account of the views of the employees in relation to the application and would require evidence of their views. I also indicated I required further material in support of the argument that all employees would be better off under the Building and Construction General On-site Award 2020 (Award) given it appears the minimum rate for several operator classifications is higher under the Agreement. I directed Retaining Solutions to file the further material by 3 November 2023.

On 3 November 2023, Retaining Solutions filed three spreadsheets containing:

· an example of weekly earnings for a skilled labourer under the Agreement and the Award;

· the classification levels for the relevant employees; and

· the relevant Award…

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.

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Details

AGLC: Retaining Solutions Design Construct Pty Ltd T/A Retaining Solutions Design Construct Pty Ltd [2023] FWC 3200
Case: [2023] FWC 3200
Decision Date: 1 DECEMBER 2023

CaseChat Overview and Summary

Retaining Solutions Design Construct Pty Ltd applied to the Fair Work Commission to terminate the Retaining Solutions Design Construct Pty Ltd Enterprise Agreement 2016 – 2020 (the Agreement) on the basis it was unfair for employees. The application was dismissed by Commissioner Crawford. The Commissioner found that the application for termination was not supported by sufficient evidence. The Commissioner found the Agreement contained superior minimum conditions for employees, including higher overtime penalty rates, shift work conditions and annual leave loading. Further, the Agreement prescribed 36 ordinary hours of work per week whereas the Building and Construction General On-site Award 2020 prescribed 38 ordinary hours. The Commissioner considered it was likely that the outcome of terminating the Agreement would not be uniform for the employees. Based on the material filed by Retaining Solutions, seven out of the 13 employees may be significantly worse off if the Agreement was terminated. The Commissioner found that the application was not supported by sufficient evidence and the application was dismissed.

Orders