Seymour Whyte Constructions Pty Ltd T/A Seymour Whyte

[2022] FWCA 2417

[2022] FWCA 2417

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Seymour Whyte Constructions Pty Ltd T/A Seymour Whyte

(AG2022/1504)

Seymour Whyte Constructions Civil Employee Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 20 JULY 2022

Application for approval of the Seymour Whyte Constructions Civil Employee Enterprise Agreement 2022

1. Seymour Whyte Constructions Pty Ltd T/A Seymour Whyte (the Employer) has applied for approval of an enterprise agreement known as the Seymour Whyte Constructions Civil Employee Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).  The Agreement is a single-enterprise agreement.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer. The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), nominated by the Employer as a union bargaining representative, wrote to the Commission advising that it does not support the approval of the proposed agreement and submitted that it is not capable of approval under the Act. I sought submissions from the CFMMEU, the Employer and any other bargaining representatives on the issues raised by the CFMMEU and held a telephone conference between the parties on 8 June 2022.

1. Following the telephone conference, the Employer provided written undertakings which the CFMMEU opposed in respect of a small number of issues. I addressed the concerns raised to the parties in an email, and as a result, the Employer provided amended written undertakings. A copy of the undertakings is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views.  No views were provided.

1. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.  Pursuant to s.190 of the Act, I accept the undertakings.  In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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 s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The CFMMEU advised that it does not wish to be covered by the Agreement.    

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 July 2022.  The nominal expiry date of the Agreement is 20 July 2026.

COMMISSIONER

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Annexure A – Undertakings