DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Workpac Construction Pty Ltd
(AG2021/5601)

CONSTRUCTION SERVICES AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 3 AUGUST 2021

Application for approval of an enterprise agreement – material incorporated by reference in the agreement – BOOT – undertakings accepted – enterprise agreement approved.

Introduction and background

[1] On 14 June 2021, WorkPac Construction Pty Ltd (WorkPac), a labour hire provider to the building and construction industry, applied for approval of the Construction Services Agreement 2021 (Enterprise Agreement), which covers employees of WorkPac who are principally engaged in construction work within any state or territory of Australia and whose classifications and pay rates are contained in the Enterprise Agreement.

[2] The CFMMEU accepts that it is not, and was not at any time, a bargaining representative for the Enterprise Agreement. I exercised my discretion under s 590 of the Fair Work Act 2009 (Cth) (Act) to permit the CFMMEU to be heard in relation to WorkPac’s application for approval of the Enterprise Agreement.

[3] The CFMMEU filed and served submissions dated 24 June 2021, 16 July 2021 and 19 July 2021. In addition to its Form F16, Form F17 and other material filed with its application for approval of the Enterprise Agreement, WorkPac filed and served submissions dated 28 June 2021, 13 July 2021 and 15 July 2021, together with a witness statement made by Mr Paul Douglas, Industrial Relations Advisor for WorkPac, on 13 July 2021, and consolidated undertakings dated 2 August 2021 (Undertakings). I have read and had regard to all of that material.

[4] At the hearing on 20 July 2021, Mr Douglas was not required for cross examination. His witness statement was tendered without objection.

Undertakings

[5] WorkPac has provided Undertakings to address a number of concerns raised by the Commission and the CFMMEU (Annexure A to this decision).

Incorporated material

[6] The CFMMEU raised a number of concerns, many of which it accepts have been appropriately addressed by the Undertakings. The CFMMEU’s principal remaining concern is that the Fair Work Commission (Commission) could not be satisfied that WorkPac has taken all reasonable steps to ensure that during the access period for the Enterprise Agreement, employees who will be covered by the Enterprise Agreement were given a copy of, or had access to, material incorporated by reference in clause 6.14.4 of the Enterprise Agreement (s 180(2) of the Act).

[7] Clause 6.14.4 of the Enterprise Agreement provides:

“The FTM(s) bound by this Agreement will be required to adhere to the Company’s and/or Client’s site alcohol and other drugs procedures, which may include pre-employment, random and for cause testing on site. Random testing for the purposes of this Clause will be done in paid work time.”

[8] The CFMMEU contends that WorkPac’s, and its client’s, site alcohol and other drugs procedures are incorporated by reference in the Enterprise Agreement. Given…

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.

Continue reading Workpac Construction Pty Ltd

Details

AGLC: Workpac Construction Pty Ltd [2021] FWCA 4731
Case: [2021] FWCA 4731
Decision Date: 3 AUGUST 2021

CaseChat Overview and Summary

In the case of Workpac Construction Pty Ltd, the applicant sought approval of an enterprise agreement under the Fair Work Act 2009. The primary dispute revolved around the incorporation of certain materials into the agreement by reference, specifically focusing on the BOOT (Build, Own, Operate, Transfer) project. The matter was heard in the Fair Work Commission, where the Commission was tasked with determining whether the agreement met the criteria for approval.

The legal issues before the Commission included whether the material incorporated by reference in the enterprise agreement was appropriately aligned with the statutory requirements and whether the BOOT project's specific terms were adequately addressed. Additionally, the Commission needed to consider the undertakings provided by the parties to ensure that the agreement would not lead to adverse outcomes for employees. The Commission's role was to balance the interests of the employer, employees, and the broader implications of the agreement's terms.

After thorough examination, the Fair Work Commission found that the enterprise agreement satisfied the necessary statutory criteria. The Commission was satisfied that the material incorporated by reference was appropriately aligned with the agreement's provisions and did not introduce any significant adverse effects on the employees. Furthermore, the undertakings provided by the parties addressed potential concerns, ensuring that the agreement would not result in detrimental outcomes. Consequently, the Commission approved the enterprise agreement, acknowledging the balanced approach taken by the parties and the comprehensive nature of the agreement.

The Commission's final orders included the approval of the enterprise agreement, subject to the terms and conditions specified within it, and the incorporation by reference of the material as outlined in the agreement. This decision ensures that the enterprise agreement operates within the legal framework and protects the interests of all parties involved.

Orders