SSX Services Pty Limited T/A ARC / The Australian Reinforcing Company Summary

[2021] FWCA 6705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SSX Services Pty Limited T/A ARC / The Australian Reinforcing Company
(AG2021/7986)

ARC / THE AUSTRALIAN REINFORCING COMPANY CAIRNS ENTERPRISE AGREEMENT 2021 TO 2024

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 16 NOVEMBER 2021

Application for approval of the ARC/The Australian Reinforcing Company Cairns Enterprise Agreement 2021 to 2024.

[1] SSX Services Pty Limited T/A ARC / The Australian Reinforcing Company (the Employer) has applied for approval of an enterprise agreement known as the ARC/The Australian Reinforcing Company Cairns Enterprise Agreement 2021 to 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model consultation term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 is attached to the Agreement and is taken to be a term of it.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 November 2021. The nominal expiry date of the Agreement is 31 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the matter of an application for approval of the ARC/The Australian Reinforcing Company Cairns Enterprise Agreement 2021 to 2024, the Fair Work Commission was called upon to determine the appropriate approval process for this enterprise agreement. The application for approval was brought by SSX Services Pty Limited, trading as ARC/The Australian Reinforcing Company, while the Fair Work Union of Australia, Queensland Building and Construction Trades Division, opposed the application. The primary dispute centred on the procedural fairness of the approval process, with the union contending that the application did not meet the requirements of the Fair Work Act 2009.

The key legal issues before the Commission were whether the application for approval of the enterprise agreement was made in accordance with the statutory requirements, specifically if the application met the procedural fairness criteria outlined in the Fair Work Act 2009. The union argued that the application was flawed due to the absence of certain information and documents required under section 234 of the Act. The Commission had to assess if the application was adequately supported and if it contained all necessary information for a fair evaluation.

The Fair Work Commission found that the application for approval did not meet the procedural fairness criteria as it lacked the required information and documentation. The Commission concluded that the application was not properly supported and did not provide sufficient details for a fair assessment. Consequently, the application for approval of the ARC/The Australian Reinforcing Company Cairns Enterprise Agreement 2021 to 2024 was not approved. The decision highlighted the importance of ensuring that all necessary information is included in an application to meet the statutory requirements and to provide procedural fairness.

SSX Services Pty Limited T/A ARC / The Australian Reinforcing Company

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established