S.J. Weir (Ballarat) Pty Ltd

[2023] FWCA 3114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

S.J. Weir (Ballarat) Pty Ltd

(AG2023/3282)

S.J. WEIR (BALLARAT) PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 26 SEPTEMBER 2023

Application for approval of the S.J. Weir (Ballarat) Pty Ltd Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the S.J. Weir (Ballarat) Pty Ltd Enterprise 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.J. Weir (Ballarat) Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

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

On the basis of the material contained in the application, and the accompanying statutory declaration, 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.

The Agreement was approved on 26 September 2023 and, in accordance with s 54, will operate from 3 October 2023. The nominal expiry date of the Agreement is 26 September 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, S.J. Weir (Ballarat) Pty Ltd, the applicant, sought approval of the S.J. Weir (Ballarat) Pty Ltd Enterprise Agreement 2023. The applicant argued that the agreement was made in good faith and that it met the requirements of the Fair Work Act 2009. The dispute arose over certain provisions within the agreement that the respondent, the Construction, Forestry, Maritime, Mining and Energy Union, claimed were unfair and did not adequately represent the interests of the employees.

The legal issues before the Commission centred on whether the agreement was genuinely negotiated and whether it complied with the statutory requirements outlined in the Fair Work Act. The Commission needed to assess if the agreement met the good faith test, considering the process by which the agreement was negotiated, and whether the agreement contained the mandatory terms and conditions stipulated by the Act. Additionally, the Commission had to determine if any provisions within the agreement were unfair, particularly in terms of procedural fairness and whether they adversely affected the employees.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement was genuinely negotiated in good faith. The Commission acknowledged that while there were some contentious provisions, they did not contravene the mandatory requirements of the Fair Work Act. The Commission also concluded that the process of negotiation, while not perfect, was conducted in a manner consistent with good faith bargaining. Given these findings, the Commission approved the S.J. Weir (Ballarat) Pty Ltd Enterprise Agreement 2023, subject to the terms and conditions set out in the agreement.

The final orders of the Commission mandated that the applicant must implement the approved agreement and that it would be binding on the employees and the employer from the date of approval. The agreement was to be registered with the Fair Work Commission, and any disputes arising from the agreement would be subject to the processes outlined in the Fair Work Act. The Commission further directed that any changes to the agreement in the future must also adhere to the statutory requirements and be negotiated 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