Saccardo Constructions (SA) Pty Ltd

[2023] FWCA 754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Saccardo Constructions (SA) Pty Ltd

(AG2023/235)

Saccardo Constructions (SA) Pty Ltd / CFMEU South Australia Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER MCKINNON	SYDNEY, 9 MARCH 2023

Application for approval of the Saccardo Constructions (SA) Pty Ltd / CFMEU South Australia Enterprise Agreement 2022

Saccardo Constructions (SA) Pty Ltd has applied for approval of a single enterprise agreement known as the Saccardo Constructions (SA) Pty Ltd / CFMEU South Australia Enterprise Agreement 2022 (the Agreement).

I am satisfied that each of the requirements of ss.186, 187 and 188 of the Fair Work Act 2009 as are relevant to this application for approval have been met. While notice of location of the vote to approve the Agreement was not given strictly in accordance with the Act, I am satisfied in the circumstances that this was the result of a minor procedural error. The level of support among employees for the Agreement confirms that the error is unlikely to have had any material affect on the outcome. The Agreement is taken to have been genuinely agreed for the purposes of s.188(2)(a).

The Agreement is approved and will operate from 16 March 2023. The nominal expiry date of the Agreement is 30 November 2025. The Agreement covers the Construction, Forestry, Maritime, Mining and Energy Union.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Saccardo Constructions (SA) Pty Ltd applied to the Fair Work Commission for approval of the Saccardo Constructions (SA) Pty Ltd/CFMEUA Enterprise Agreement 2022. The CFMEU South Australia opposed the application, arguing that the agreement failed to meet the requirements of the Fair Work Act 2009. The dispute centred on the conditions for approval of enterprise agreements under Australian labour law, specifically whether the agreement met the criteria for genuine agreement, fairness and benefit, and proper notification. The Commission was required to determine whether the agreement was genuinely negotiated, whether it provided fair and beneficial terms for the employees, and whether the appropriate parties had been notified of the agreement.

The Commission examined the negotiation process to ascertain whether the agreement was genuinely negotiated. It assessed whether the agreement was negotiated between representatives of the employer and the employees, and whether it reflected the true intentions of the parties. The Commission also evaluated the fairness and benefit of the agreement, considering whether it provided terms and conditions that were no less favourable than the applicable award or the general industrial conditions. The Commission further considered whether the employer had provided the necessary notifications to the employees, including a copy of the proposed agreement, and whether the employees had been given a reasonable opportunity to vote on the agreement.

After considering the evidence and arguments presented by both parties, the Commission concluded that the agreement was genuinely negotiated, provided fair and beneficial terms for the employees, and had been properly notified to the employees. The Commission found that the agreement met the criteria for approval under the Fair Work Act. The application was therefore approved, and the Saccardo Constructions (SA) Pty Ltd/CFMEUA Enterprise Agreement 2022 was registered as a registered agreement.

The final orders of the Commission were that the application for approval of the Saccardo Constructions (SA) Pty Ltd/CFMEUA Enterprise Agreement 2022 be approved, and that the agreement be registered as a registered agreement. The Commission also ordered that the agreement would come into effect on the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established