DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sarcon Pty Ltd
(AG2021/6287)

COMMISSIONER LEE

MELBOURNE, 28 JULY 2021

Application for approval of the Sarcon Pty Ltd and Sarcon Employees Agreement 2020-2022.

[1] An application has been made for approval of an enterprise agreement known as the Sarcon Pty Ltd and Sarcon Employees Agreement 2020-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sarcon Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] On the information provided with the application, in the Form F17 at item 26, it was stated that only one person will be covered by the Agreement, only one person cast a vote and only one person voted to approve the Agreement.

[3] On 27 July 2021, my chambers wrote to the Applicant pointing out that s.172(6) of the Act provides that an enterprise agreement cannot be made with a single employee.

[4] The correspondence noted that while there were other concerns with the application, the fact that the Agreement was made with a single employee meant that I had formed the provisional view that the Agreement cannot be approved.

[5] The correspondence further advised that:

“• You may wish to withdraw this application by lodging a Form F50, which has been attached for your convenience.

• If you do not withdraw the application, the matter will be listed for Hearing.”

[6] On 27 July 2021 the Applicant responded via email advising in summary that:

• They did not wish to withdraw the application as the refusal to approve the Agreement is discriminatory.

• The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) control large construction sites in Brisbane and an enterprise agreement is required to work on them.

• The Applicant has only one employee at this time as it cannot work on these CFMMEU sites.

• The Commission is excluding the Applicant from tendering on larger projects by withholding the right to an enterprise agreement.

• While acknowledging that s.172(6) precludes agreements with a single employee, they “would think that the FWC has some discretion in a predicament similar to ours”.

[7] The matter was subsequently listed for hearing on 28 July 2021. During the hearing I asked the Applicant if they wish to provide any further oral submissions in the matter. The Applicant further particularised the concern as put in their email dated 27 July 2021 but did not wish to add anything further.

[8] The terms of s.172(6) are as follow:

“172 Making an enterprise agreement

…

Requirement that there be at least 2 employees

(6) An enterprise agreement cannot be made with a single employee.”

[9] The facts in this matter are that the Agreement was made with a single employee. This contravenes s.172(6) and therefore the Agreement cannot be approved.

[10] The claims of the Applicant that the Commission is acting in a discriminatory manner or otherwise taking action to exclude the Applicant for tendering work are rejected as baseless and misconceived. The terms of s.172(6) are mandatory. There is no capacity for the Commission to exercise discretion.

Conclusion

[11] Accordingly, consistent with the correspondence and reasons indicated above, I have decided that the Agreement cannot be approved in light of s.172(6) of the Act because it was made with a single employee. The application is dismissed.

COMMISSIONER

Appearances:

L Sarri for the Applicant.

Hearing details:

2021.
Melbourne (via telephone):
July 28.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Sarcon Pty Ltd applied for the approval of the Sarcon Pty Ltd and Sarcon Employees Agreement 2020-2022. The applicants sought to have the agreement approved as a registered agreement under the Fair Work Act 2009, thereby granting it the force of a legally binding contract. The dispute centred on whether the agreement was made in good faith and whether it provided for fair terms and conditions for the employees.

The primary legal issues before the Commission were whether the agreement was genuinely negotiated, whether it complied with the procedural requirements of the Act, and whether it provided for terms and conditions that were fair and reasonable. The Commission had to consider the evidence presented by both parties and determine if the agreement met the statutory criteria for approval. Specifically, the Commission examined whether the agreement was the product of genuine bargaining between the parties and whether it provided for terms and conditions that were not less favourable than the applicable minimum standards.

The Commission found that the agreement was indeed the product of genuine negotiations between the parties and that it met the procedural requirements under the Fair Work Act. The Commission also determined that the agreement provided for terms and conditions that were fair and reasonable, taking into account the evidence presented regarding industry standards and the parties' bargaining positions. Consequently, the Commission approved the agreement as a registered agreement under the Act, effective from the specified period. This approval meant that the agreement would have the force of a legally binding contract between the parties, subject to the terms and conditions set out in the agreement.

Sarcon Pty Ltd

DECISION

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established