SRG Global Integrated Services Pty Ltd

[2024] FWCA 196

[2024] FWCA 196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SRG Global Integrated Services Pty Ltd

(AG2023/5135)

SRG GLOBAL INTEGRATED INDUSTRIAL SERVICES AND MULTI-DISCIPLINARY CONTRACT ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 18 JANUARY 2024

Application for approval of the SRG Global Integrated Industrial Services and Multi-Disciplinary Contract Enterprise Agreement 2023

1. SRG Global Integrated Services Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the SRG Global Integrated Industrial Services and Multi-Disciplinary Contract Enterprise Agreement 2023 (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.

1. At the time of the vote, 75 employees were covered by the Agreement.[1]  Of those 75, 35 were employed on a casual basis.[2]  Ultimately, 50 of the 75 employees cast a valid vote and 39 voted to approve the Agreement.[3] The inclusion of casual employees in the voting cohort gave rise to a concern that the Agreement may not have been made by a majority of ‘employees employed at the time’ who cast a valid vote (see s 182(1) of the Act).

1. It is uncontroversial that enterprise agreements were intended by the legislature to be capable of covering casual employees.  However, a difficulty that has arisen is ascertaining when a casual employee ought to be regarded as an employee ‘employed at the time’ within the meaning of s 181(1).  In relation to permanent employees, it is of course a relatively straightforward exercise.  

1. In the decision of St John of God Health Care Inc (St John),[4] I traversed the authorities that have considered the phrase ‘employed at that time’.  I do not intend to repeat here what was said in St John because based on the evidence submitted, I am satisfied that 30 of the causal employees worked a shift during the access period and the inclusion of the casual employees who did not work during the access period would not have affected the outcome of the vote. Accordingly, I am satisfied that the Agreement was approved by a majority of ‘employees employed at the time’ and that the Agreement was made in accordance with s 182(1).

1. In its Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement), the Construction, Forestry and Maritime Employees Union (the organisation) identified that it disagreed with one or more of the statements in the Applicant’s declaration relating to the Agreement and whether it passed the better of overall test (BOOT).  In response to the organisation’s concerns, the Applicant filed submissions that were inclusive of a detailed analysis with respect to the BOOT and rates of pay.  Having considered those submissions, the organisation no longer sought to press its concerns as raised.  Furthermore, I formed the view that the issues raised had been resolved.

1. In addition to addressing the BOOT concerns by way of submissions and a detailed analysis of pay rates, the Applicant also provided written undertakings.  A copy of the undertakings is attached in Annexure A.  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.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and 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, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. The organisation, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 18 January 2024 and, in accordance with s 54, will operate from 25 January 2024.  The nominal expiry date of the Agreement is 18 January 2027.

DEPUTY PRESIDENT

Annexure A

[1] Form F17B – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) – notification time after 6 June 2023, question 29.

[2] Ibid question 6.

[3] Ibid question 29.

[4] [2023] FWCA 87.

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