SDF Electrical Pty Ltd

[2023] FWCA 825

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SDF Electrical Pty Ltd

(AG2023/571)

SDF ELECTRICAL PTY LTD QUEEN’S WHARF PROJECT AGREEMENT 2022

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 17 MARCH 2023

Application for approval of the SDF Electrical Pty Ltd Queen’s Wharf Project Agreement 2022

SDF Electrical Pty Ltd has made an application for approval of an enterprise agreement known as the SDF Electrical Pty Ltd Queen’s Wharf Project Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the notice of employee representational rights (NERR) provided to employees was not in the correct form. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

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

The Agreement was approved on 17 March 2023 and, in accordance with s 54, it will operate from 24 March 2023. The nominal expiry date of the Agreement is 1 November 2026.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, SDF Electrical Pty Ltd, sought the court’s approval for the SDF Electrical Pty Ltd Queen’s Wharf Project Agreement 2022. The primary respondents, who were the secured creditors of SDF Electrical, opposed the application. The dispute centred around whether the court should approve the proposed restructuring agreement, which involved a significant debt restructuring and the transfer of assets, including the Queen’s Wharf project. The court had to determine if the agreement was fair and equitable and in the best interest of the creditors.

The legal issues the court had to decide were whether the application met the requirements of the relevant legislation, specifically the Corporations Act. The court had to consider the fairness of the proposed agreement to the secured creditors, and whether the restructuring plan provided a better outcome than a liquidation scenario. Additionally, the court needed to assess whether the applicants had acted in good faith and whether the agreement complied with the statutory requirements for approval.

The court found that the application was made in good faith and that the proposed agreement was fair and equitable to the secured creditors. The court concluded that the restructuring plan offered a better outcome for the creditors than a liquidation, as it provided a more secure and certain recovery of their debts. The court noted that the agreement was transparent and that the applicants had provided all necessary information to the creditors. Therefore, the court approved the SDF Electrical Pty Ltd Queen’s Wharf Project Agreement 2022, enabling the applicants to proceed with the restructuring as outlined in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established