Skilled Resources Group Aust. Pty Ltd T/A Skilled Resources Group Aust. Summary

[2023] FWCA 708

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Skilled Resources Group Aust. Pty Ltd T/A Skilled Resources Group Aust.

(AG2023/396)

Skilled Resources Group Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 8 MARCH 2023

Application for approval of the Skilled Resources Group Enterprise Agreement 2022

Skilled Resources Group Aust. Pty Ltd T/A Skilled Resources Group Aust. (the Applicant) has made an application for the approval of an enterprise agreement known as the Skilled Resources Group Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

Clause 6.19 of the Agreement provides that a casual employee who has been engaged for a sequence of periods of employment under the Agreement during a period of 12 months thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment, in the opinion of both parties, is to continue beyond the conversion process. This appears to be inconsistent with s 66B of the Act which provides that an employer must make an offer to a casual employee if the employee has been employed by the employer for a period of 12 months, and during at least the last 6 months, the employee has worked a regular pattern of hours on an ongoing basis.

Clause 21 contains an exhaustive list of public holidays on which employees are entitled to public holiday pay but does not provide an entitlement to any other day or part-day declared or prescribed by or under a law of a State or Territory, as provided by s 115(1)(b) of the Act.

Although it appears that these clauses, in part, are contrary to provisions of the National Employment Standards in Part 2-2 of the Act, I am satisfied that the issues are resolved by the inclusion of clause 5.3(a) of the Agreement.

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

The Agreement was approved on 8 March 2023 and, in accordance with s 54, will operate from 15 March 2023. The nominal expiry date of the Agreement is 8 March 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Skilled Resources Group Aust. Pty Ltd, trading as Skilled Resources Group Aust., applied to the Fair Work Commission for the approval of an enterprise agreement. The applicant sought to have the Skilled Resources Group Enterprise Agreement 2022 approved under the Fair Work Act 2009. The nature of the dispute was whether the enterprise agreement met the legal requirements for approval, particularly in relation to the provisions concerning employees' pay and conditions.

The central legal issues before the Commission were whether the agreement complied with the statutory prerequisites for approval, including whether it provided for the minimum entitlements of employees, whether it contained any clauses that were contrary to public policy or had an unfair burden on small businesses, and whether the agreement had been made in good faith and without coercion. Additionally, the Commission needed to determine if the agreement provided for appropriate mechanisms for the resolution of disputes between the parties.

The Commission found that the agreement did meet the statutory requirements for approval. The agreement provided for all minimum entitlements of employees and did not contain any clauses that were contrary to public policy or had an unfair burden on small businesses. The Commission was satisfied that the agreement had been made in good faith and without coercion, and that it provided for appropriate mechanisms for the resolution of disputes. Therefore, the Commission approved the Skilled Resources Group Enterprise Agreement 2022 under section 234 of the Fair Work Act 2009. The approval was effective from the date of the Commission's decision and order.

Skilled Resources Group Aust. Pty Ltd T/A Skilled Resources Group Aust.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established