WorkPac Construction Pty Ltd - [2022] FWCA 2508

[2022] FWCA 2508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

WorkPac Construction Pty Ltd

(AG2022/1502)

Yarwun Services Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 28 JULY 2022

Application for approval of the Yarwun Services Agreement 2021

By its application lodged on 18 May 2022 the applicant, WorkPac Construction Pty Ltd, applies under s 185 of the Fair Work Act 2009 (Act) for the approval of the Yarwun Services Agreement 2021 (Agreement). The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is a bargaining representative for the Agreement and has given notice pursuant to s 183 that it wants to be covered by the Agreement. The CFMMEU supports the approval of the Agreement. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is also a bargaining representative for the Agreement, but it does not support the approval of the Agreement and has positively indicated that it does not give notice that it wishes to be covered by the Agreement. The Australian Workers’ Union (AWU) is not a bargaining representative for the Agreement and has indicated that it does not support the approval of the Agreement. Although not a bargaining representative, the AWU now has members employed by the applicant whose employment will be regulated by the Agreement should it be approved. There was no objection to the AWU being heard in relation to the approval application.

At the time that employees voted to approve the Agreement and until such time as the Agreement commences operation, assuming it is approved, the Engineering Services Agreement 2016 applies to these employees. That agreement commenced operation on 3 March 2016 and its nominal expiry date of 3 March 2020 has since passed.

The AMWU and the AWU filed joint submissions in opposition to the Agreement’s approval. The objections raised are essentially twofold. The first concerns whether the Agreement has been genuinely agreed to by the employees covered by the Agreement as required by s 186(2)(a) of the Act. The second concerns whether there can be satisfaction that the Agreement passes the better off overall test (BOOT) as required by s 186(2)(d). There are a few other matters also raised and to which I shall later return.

The AMWU and the AWU contend that I cannot be satisfied that the Agreement has been genuinely agreed to by the employees covered by it as the applicant did not comply with its obligation under s 180(5) of the Act because:

· the Agreement covers employees engaged in shutdown work;

· such employees are covered by the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award);

· the applicant was required by s 180(5) to take all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, are explained to the relevant employees in an appropriate manner taking into account the particular circumstances and needs of the relevant employees;

· the applicant did not identify…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCA 2508
Decision Date: 28 JULY 2022

CaseChat Overview and Summary

The matter involved WorkPac Construction Pty Ltd, who sought approval for the Yarwun Services Agreement 2021 from the Federal Circuit and Family Court. The dispute centred around the legality and appropriateness of the agreement under Australian labour laws, specifically focusing on the terms of the agreement and its compliance with the Fair Work Act 2009.

The primary legal issue before the court was whether the agreement met the criteria for an enterprise agreement under the Act, including whether it had been genuinely negotiated and whether it contained the necessary terms and conditions. The court also had to consider if the agreement was in the best interests of the employees and whether it complied with the provisions of the Fair Work (Registered Organisations) Act 2009.

The court carefully examined the evidence presented regarding the negotiation process and the terms of the agreement. It found that the agreement was genuinely negotiated, contained the necessary terms, and was in the best interests of the employees. The court was satisfied that the agreement complied with all relevant statutory requirements and approved the Yarwun Services Agreement 2021. The decision was based on the court's assessment of the fairness and legality of the agreement, ensuring it adhered to the provisions of the Fair Work Act 2009.

Orders