DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shaw Building Group Pty Ltd
(AG2021/6059)

DEPUTY PRESIDENT CROSS

SYDNEY, 6 SEPTEMBER 2021

Application for approval of the Shaw Building Group Pty Ltd and Employees Enterprise Agreement 2021-2025.

[1] An application for the approval of an enterprise agreement known as the Shaw Building Group Pty Ltd and Employees Enterprise Agreement 2021-2025 (the Agreement), was made by Shaw Building Group Pty Ltd (the Applicant) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) have made submissions requesting to be heard in relation to the approval of the Agreement pursuant to s.176 and s.590 of the Act. The Applicant opposes the CFMMEU’s request to be heard.

The CFMMEU Application to be Heard

[3] Both the Applicant and the CFMMEU filed written submissions regarding the CFMMEU’s application to be heard, on 6 and 18 August 2021, respectively. The CFMMEU advanced its application to be heard on two grounds. Firstly, the CFMMEU believed that it was a bargaining representative for the proposed agreement on the basis that it had members employed by the Applicant who would be covered by the proposed agreement at the time the agreement was made (S.176 of the Act).

[4] In the alternative, the CFMMEU sought that the Fair Work Commission (the Commission) use its discretion to hear from CFMMEU pursuant to s590(1) of the Act, so as to “inform itself in relation to any matter in such manner as it considers appropriate.” 1 The CFMMEU submitted that it sought to put forward submissions that address the BOOT, as well as submissions dealing with the procedural elements of the Agreement.

[5] The Applicant resisted the CFMMEU’s application to be heard. The Applicant submitted:

(a) The CFMMEU was not a bargaining representative for the Agreement and therefore has no right under the framework of the Act; and

(b) The exercise of the Commission’s discretion under Section 590(1) of the Fair Work Act is not warranted in the circumstances of this Application; and

[6] The CFMMEU was not a bargaining representative in the negotiation, or the making, of the Agreement. While the CFMMEU asserted that it had reason to believe that it had members that may be covered by the Agreement, that issue was resolved by the Applicant and the CFMMEU each, on 9 August 2021, providing to the Commission on a confidential basis with lists of employees covered by the Agreement and members of the CFMMEU respectively.

[7] I considered each list provided by the Applicant and the CFMMEU and note that none of the members contained in the CFMMEU’s list of members are on the list of employees to be covered by the Agreement provided by the Applicant. The three employees that will be covered by the Agreement all cast votes in relation to the Agreement, and all voted to approve…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 5548
Decision Date: 6 SEPTEMBER 2021

CaseChat Overview and Summary

In the Fair Work Commission, the applicant Shaw Building Group Pty Ltd applied for the approval of the Shaw Building Group Pty Ltd and Employees Enterprise Agreement 2021-2025. The applicant is a construction company and the respondent is the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute pertains to the terms and conditions of employment for the employees under the proposed enterprise agreement.

The primary legal issue before the court was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the terms and conditions of employment and the process through which the agreement was formed. The court had to assess whether the agreement met the criteria for "bargaining representative agreement" and whether it was made in good faith, and without the use of threats or coercion.

The court examined the evidence presented by both parties regarding the bargaining process and the terms of the agreement. The applicant demonstrated that the agreement was the result of genuine negotiations between the parties and that it was made in good faith. The court also noted that the agreement contained provisions that were no less favourable than the applicable award or safety net award, and that it provided for a fair and reasonable set of terms and conditions for the employees. The court was satisfied that the agreement met all the legal requirements and approved it accordingly.

The court's final orders were that the Shaw Building Group Pty Ltd and Employees Enterprise Agreement 2021-2025 be approved as a registered agreement under the Fair Work Act 2009, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees of Shaw Building Group Pty Ltd for the duration of the agreement.

Orders