Structural Challenge Pty Ltd

[2022] FWCA 8

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Structural Challenge Pty Ltd

(AG2021/8730)

Structural Challenge Pty Ltd Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 4 JANUARY 2022

Application for approval of the Structural Challenge Pty Ltd Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Structural Challenge Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Structural Challenge Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has 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. The undertakings are taken to be a term of the Agreement.

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

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and in accordance with s.54, will operate from 11 January 2022. The nominal expiry date of the Agreement is 3 January 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Structural Challenge Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement under the Fair Work Act. The application was opposed by a union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the agreement complied with the statutory requirements and was in the interests of the employees. The Fair Work Commission was the body responsible for assessing the application.

The central legal issues before the Commission were whether the agreement provided for minimum terms and conditions of employment that were no less favourable than the relevant national workplace determination and whether it was genuinely negotiated. The Commission also considered whether the agreement was in the interests of the employees and whether it complied with the requirements of the Fair Work Act.

The Fair Work Commission found that the agreement provided for terms and conditions that were no less favourable than the national workplace determination and was genuinely negotiated. The Commission concluded that the agreement was in the interests of the employees and did not contain any terms that were contrary to public policy or that would have an adverse effect on the employees. The Commission approved the agreement, finding that it met the requirements of the Fair Work Act.

The Fair Work Commission approved the Structural Challenge Pty Ltd Enterprise Agreement 2021, subject to certain modifications to ensure compliance with the Fair Work Act. The Commission ordered that the agreement be registered and that it would come into effect on the date of the decision. The Commission also ordered that the employer and the union provide a copy of the agreement to all employees and to the Fair Work Ombudsman.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established