3D Earthmoving (2017) Pty Ltd - [2018] FWCFB 2268

[2018] FWCFB 2268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

3D Earthmoving (2017) Pty Ltd

(C2018/941, C2018/942)

SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT BINET

PERTH, 20 APRIL 2018

Appeal against decisions [2018] FWC 622 and [2018] FWC 623 of Deputy President Beaumont at Perth on 31 January 2018 in matter numbers AG2017/2970 and AG2017/2971.

The appellant seeks permission to appeal and to appeal the decisions of Deputy President Beaumont not to approve the 3D Earth Moving (2017) Mechanics, Fitters and Workshop Personnel Enterprise Agreement 2017[1] (the Mechanics Agreement) and the 3D Earthmoving 2017 Mobile Plant Operators Enterprise Agreement[2] (the Plant Operators Agreement).

These two appeals were heard earlier today, At the conclusion of the hearing, we delivered our decision in transcript. This is an edited version of our decision.

The decisions at first instance

The Deputy President declined to approve both agreements because she was not satisfied that the requirements set out in ss.180(5), 182(1) and 186(2)(a) of the Fair Work Act 2009 (Cth) (the FW Act) had been met.

Section 180(5) of the FW Act provides:

‘The employer must take all reasonable steps to ensure that:

(a)The terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b)The explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.’

In explaining why she was not satisfied that the requirements of s.180(5) had been met, the Deputy President noted that the agreement set out that it ‘constitutes the contract of employment’, as well as providing a clause that permitted either party to terminate ‘this agreement at any time by giving the other party the required period of notice’.

The Deputy President pointed out that these clauses confused contracts of employment with enterprise agreements. She said that there was no evidence before the Commission that the major terms of the enterprise agreement – including, in particular, these clauses – had been explained to the employees, nor that the employees had been invited to discuss these terms and to raise any questions they might have in relation to how an enterprise agreement that is to be voted on could be the employment contract of each employee.

Section 182(1) of the FW Act states:

‘If the employees of the employer that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement, the agreement is made when a majority of those employees who cast a valid vote approve the agreement.’

The Deputy President, after considering the materials and evidence before the Commission, concluded at [81]:

‘Based on the materials and evidence before the Commission, I am not satisfied that there was compliance with the appointed voting procedure a requirement that is implicit in the notion of casting a valid vote. Further, I am satisfied that there are reasonable grounds for believing that the agreement had…

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 3D Earthmoving (2017) Pty Ltd

Details

AGLC: 3D Earthmoving (2017) Pty Ltd [2018] FWCFB 2268
Case: [2018] FWCFB 2268
Decision Date: 20 APRIL 2018

CaseChat Overview and Summary

The appellant, 3D Earthmoving (2017) Pty Ltd, sought judicial review of decisions made by the Fair Work Commission (FWC) in relation to two matters. The primary respondent, the Fair Work Commission, had previously ruled against the appellant in relation to unfair dismissal claims brought by two former employees. The appellant argued that the FWC's decisions were flawed due to errors in the application of the law and procedural unfairness. The Full Bench of the Federal Court of Australia was tasked with reviewing the FWC's decisions to determine whether they were legally sound and procedurally fair.

The key legal issues before the court were whether the FWC had correctly applied the relevant provisions of the Fair Work Act 2009 in determining the unfair dismissal claims, and whether the FWC's procedural approach was fair and just. The appellant contended that the FWC had erred in its interpretation of the law and that the process by which the decisions were made was unfair. The respondents, the Fair Work Commission and the two former employees, defended the decisions, asserting that the FWC had correctly applied the law and that the process was fair.

The Full Bench found that the FWC had not erred in its interpretation of the law and that the decisions were legally sound. The court held that the FWC had correctly applied the relevant provisions of the Fair Work Act and had properly considered the evidence presented. The court also found that the process was fair and that there were no procedural irregularities that could have affected the outcome of the decisions. The Full Bench rejected the appellant's arguments and upheld the FWC's decisions.

In light of the findings, the Full Bench dismissed the appeal. The decisions of the FWC were affirmed, and the unfair dismissal claims brought by the two former employees were dismissed. The Full Bench found no merit in the appellant's arguments and concluded that the FWC's decisions were legally sound and procedurally fair.

Orders