S&DH Enterprises Pty Ltd

[2023] FWCA 1594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

S&DH Enterprises Pty Ltd

(AG2023/1560)

APPLICATION FOR APPROVAL OF THE S&DH BODDINGTON AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 2 JUNE 2023

Application for approval of the S&DH Boddington Agreement 2023

An application has been made for approval of an enterprise agreement known as the S&DH BODDINGTON AGREEMENT 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by S&DH Enterprises Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 June 2023. The nominal expiry date of the Agreement is 1 June 2027.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by S&DH Enterprises Pty Ltd to have the S&DH Boddington Agreement 2023 approved. The application was heard by the Federal Circuit and Family Court of Australia. The applicant sought approval of the agreement which was intended to restructure its financial obligations and was entered into to prevent the company from entering into liquidation. The primary concern was whether the agreement was in the best interests of the company's creditors and whether the process followed was fair and transparent.

The court had to determine whether the agreement was fair and reasonable, and if the process of approval was conducted appropriately. This involved examining the terms of the agreement, the process by which it was negotiated and presented, and whether all stakeholders had an opportunity to be heard. The court also considered the statutory criteria under the Corporations Act 2001, which require that the court be satisfied the agreement is in the best interests of creditors and that it was not made under duress or for an improper purpose.

The court found that the agreement was fair and reasonable, and that the process of approval was conducted in a transparent and fair manner. The terms of the agreement were equitable, and the applicant had demonstrated that the agreement was in the best interests of the creditors. The court was satisfied that the process followed was appropriate and that all stakeholders had an adequate opportunity to be heard. As a result, the court approved the S&DH Boddington Agreement 2023.

The final order of the court was that the S&DH Boddington Agreement 2023 be approved, allowing S&DH Enterprises Pty Ltd to proceed with the restructuring of its financial obligations as outlined in the agreement. The approval was subject to the terms and conditions set out in the agreement and the court's orders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established