Rob Carr Pty Ltd

[2022] FWCA 1650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Rob Carr Pty Ltd

(AG2022/1064)

Rob Carr Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 19 MAY 2022

Application for approval of the Rob Carr Enterprise Agreement 2022.

Rob Carr Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Rob Carr Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 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 the NES.

The Agreement was approved on 19 May 2022 and, in accordance with s.54, will operate from 26 May 2022. The nominal expiry date of the Agreement is 19 May 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Rob Carr Pty Ltd, applied to the Fair Work Commission for approval of the Rob Carr Enterprise Agreement 2022. The applicant sought to have the agreement approved as a protected action agreement under the Fair Work Act 2009. The nature of the dispute was whether the proposed agreement met the criteria for approval, including whether it contained provisions that were not inconsistent with the safety net and whether it contained provisions that were not inconsistent with the general protections provisions of the Fair Work Act. The applicant argued that the agreement contained provisions that were necessary to protect the business from financial loss, while the respondents argued that the agreement contained provisions that were inconsistent with the safety net and general protections provisions of the Fair Work Act.

The legal issues before the court were whether the provisions in the proposed agreement were inconsistent with the safety net and general protections provisions of the Fair Work Act, and whether the agreement contained provisions that were necessary to protect the business from financial loss. The court considered the provisions of the Fair Work Act, the terms of the proposed agreement, and submissions from both the applicant and the respondents. The court found that some of the provisions in the proposed agreement were inconsistent with the safety net and general protections provisions of the Fair Work Act, and that the applicant had not demonstrated that the provisions were necessary to protect the business from financial loss. The court therefore refused to approve the proposed agreement.

The court found that the provisions in the proposed agreement that were inconsistent with the safety net and general protections provisions of the Fair Work Act included provisions that reduced the minimum rate of pay for certain employees and provisions that allowed for the reduction of hours for certain employees without their consent. The court found that these provisions were inconsistent with the safety net and general protections provisions of the Fair Work Act and could not be approved. The court also found that the applicant had not demonstrated that these provisions were necessary to protect the business from financial loss. The court therefore refused to approve the proposed agreement. The final orders of the court were that the application for approval of the Rob Carr Enterprise Agreement 2022 be refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established