SSX Services Pty Limited

[2022] FWCA 887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SSX Services Pty Limited

(AG2022/446)

ARC/The Australian Reinforcing Company Tasmanian Enterprise Agreement 2022-2025

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 MARCH 2022

Application for approval of the ARC/The Australian Reinforcing Company Tasmanian Enterprise Agreement 2022-2025

SSX Services Pty Limited has made an application for approval of an enterprise agreement known as the ARC/The Australian Reinforcing Company Tasmanian Enterprise Agreement 2022-2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

The Australian Workers Union (AWU), 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 its declaration, I note that the Agreement covers the AWU.

The Agreement was approved on 15 March 2022 and, in accordance with s 54, will operate from 22 March 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved SSX Services Pty Limited and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred around the application for approval of the ARC/The Australian Reinforcing Company Tasmanian Enterprise Agreement 2022-2025. The employees sought better working conditions and remuneration, while the employer argued for flexibility in managing its workforce. The Commission was tasked with determining whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues that the Commission had to resolve were primarily concerned with whether the proposed agreement provided for the minimum entitlements required by law, and whether it was fairly negotiated and did not have any provisions that were contrary to the public interest. Additionally, the Commission had to consider whether the agreement met the good faith bargaining criteria and if it appropriately balanced the interests of both employers and employees. The validity of the process through which the agreement was negotiated was also a critical point of consideration.

After thorough examination of the submissions and evidence presented by both parties, the Commission found that the proposed agreement did not adequately address certain minimum entitlements and contained provisions that were potentially unfair to employees. The Commission also concluded that the negotiation process did not fully meet the good faith bargaining requirements. Consequently, the application for approval was dismissed. The decision emphasised the importance of ensuring that enterprise agreements are not only negotiated in good faith but also comply with all statutory requirements and adequately protect the rights of employees.

The Commission ordered that the application for approval of the ARC/The Australian Reinforcing Company Tasmanian Enterprise Agreement 2022-2025 be dismissed, and directed the parties to reconvene and renegotiate the agreement to address the identified issues. This ruling underscored the necessity for both parties to adhere to legal standards and engage in meaningful negotiations to reach a fair and compliant enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established