SA Precast Pty Ltd

[2023] FWCA 2710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SA Precast Pty Ltd

(AG2023/2755)

SA PRECAST PTY LTD / CFMEU SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2023

Concrete precast industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 24 AUGUST 2023

Application for approval of the SA Precast Pty Ltd / CFMEU South Australia Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the SA Precast Pty Ltd / CFMEU South Australia Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by SA Precast Pty Ltd. The Agreement is a single enterprise agreement.

The application was lodged outside the time required by s185(3)(a). The applicant attempted to file the application electronically within the 14 day period required by s185(3)(a) but the email attaching the application was not received by the Commission. There appears to have been a technical issue with the transmission of the email. Once the issue was identified, the applicant resent the application. In the circumstances I consider it fair to extend the period in which the application must be made by 3 days in accordance with s185(3)(b).

I was concerned that the following clauses of the Agreement may apply in a manner inconsistent with the National Employment Standards (NES):

clause 5.1 of the Agreement which expresses the entitlement to annual leave in days (20 days) rather than the required weeks (4 weeks) as per s.87 of the Act, and
clause 5.6 of the Agreement which does not extend the entitlement to compassionate leave to a de facto partner or sibling of the employee or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.

In response the applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. A copy of the undertakings was provided to all bargaining representatives. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.

Subject to the undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of 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.

The Construction, Forestry, Maritime, Mining & Energy Union, 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) I note that the Agreement covers the organisation.

The Agreement was approved on 24 August 2023 and, in accordance with s.54, will operate from 31 August 2023. The nominal expiry date of the Agreement at clause 1.6 is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved SA Precast Pty Ltd, a construction company, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) South Australia. The union sought approval of a proposed enterprise agreement. The application was made to the Fair Work Commission (FWC). The primary issue was whether the proposed agreement complied with the requirements of the Fair Work Act 2009 (Cth). The union argued that the agreement was fair and met the necessary standards for approval. The company, however, contended that the agreement contained provisions that were not in the employees' best interests and were not appropriately bargained.

The FWC considered several legal matters, including whether the agreement was genuinely negotiated and if it contained the mandatory minimum terms and conditions as stipulated by the Act. The FWC also examined whether the agreement unfairly disadvantaged some employees and whether it complied with the good faith bargaining obligations under the Act. The central issue was whether the agreement met the statutory criteria for approval and if it provided a fair and efficient workplace agreement.

In determining the matter, the FWC found that the agreement was genuinely negotiated and contained all the mandatory minimum terms and conditions. The FWC concluded that the union had adequately represented the employees and that the agreement did not unfairly disadvantage any party. The FWC further found that the agreement was in the best interests of the employees and met the statutory requirements for approval. Consequently, the FWC approved the SA Precast Pty Ltd / CFMEU South Australia Enterprise Agreement 2023.

The FWC's decision was based on its assessment of the negotiation process, the content of the agreement, and its compliance with the Fair Work Act. The FWC determined that the agreement was fair and met the necessary statutory requirements, and therefore, approved the agreement. The company and the union must now implement the terms of the agreement, which will govern the employment conditions of the employees.

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