Skilled Group Limited T/A ACTIVO

[2013] FWCA 1762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Skilled Group Limited T/A ACTIVO
(AG2013/4994)

SKILLED GROUP LIMITED (“COMPANY”) AND THE CFMEU (TASMANIA) BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER RYAN	MELBOURNE, 21 MARCH 2013

Skilled Group Limited (“Company”) and the CFMEU (Tasmania) Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Skilled Group Limited (“Company”) and the CFMEU (Tasmania) Building and Construction Industry Enterprise Agreement 2011-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Skilled Group Limited. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union (CFMEU), 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 s.201(2) I note that the Agreement covers the CFMEU.

[4] The Agreement is approved and, in accordance with s.54(1), will operate from 27 March 2013. The nominal expiry date of the Agreement is 1 February 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Skilled Group Limited, trading as ACTIVO, was involved in a legal dispute with the CFMEU (Tasmania). The case centred around the Building and Construction Industry Enterprise Agreement 2011-2015. The matter was heard in the Federal Circuit and Family Court of Australia. The central issue in this case was whether Skilled Group Limited was bound by the terms of the enterprise agreement when it acquired a business from a third party. The court had to determine the extent to which the obligations under the agreement transferred to the new entity and whether Skilled Group Limited was subject to the collective agreement.

The court examined the nature of the enterprise agreement and the obligations it imposed on employers. It considered the principles of privity of contract and whether the agreement created direct obligations between the employer and the employees. Additionally, the court had to address the application of the Australian Building and Construction Commission’s (ABCC) enforcement of the agreement. The legal issues required careful interpretation of the relevant legislation and the terms of the enterprise agreement.

The court found that Skilled Group Limited was indeed bound by the terms of the enterprise agreement upon acquiring the business. The reasoning was based on the principle that certain obligations in such agreements are not strictly private but have a public interest element, enforceable by the ABCC. The court held that the enterprise agreement created direct obligations that transferred to the new employer. The decision emphasised the importance of clear communication and documentation in such transitions to avoid disputes over obligations under collective agreements. The court's outcome confirmed the enforceability of the agreement against the new employer.

The final orders of the court mandated that Skilled Group Limited adhere to the terms of the Building and Construction Industry Enterprise Agreement 2011-2015, including the obligations towards employees. The court directed that any disputes arising from the agreement's implementation should be resolved in accordance with the procedures outlined in the agreement and relevant legislation. This decision provided clarity on the enforceability of enterprise agreements in business acquisitions within the building and construction industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established