[1] An application has been made for approval of an enterprise agreement known as the 3D Earth Moving 2017 Mobile Plant Operators Enterprise Agreement (the Plant Operators’ Agreement). The application was made by Workplace Negotiations WA on behalf of the employer pursuant to s.185 of the Fair Work Act 2009 (the Act) (the Application). The Agreement is a single-enterprise agreement.

[2] The scope of the Plant Operators Agreement covers Dump Truck, Water Cart, Roller, Low Loader, Excavator, Dozer, Grader, Loader, Screening, Scraping, Site Clerk and Administration Staff. It is submitted that the Mining Industry Award 2010 is the relevant modern award for this matter.

[3] The application to approve the Plant Operators’ Agreement is dismissed as the requirements set out in ss.186(2)(a) of the Act have not been met. It is further observed that the requirements of ss.180(5) and ss.182(1) are not satisfied. The reasons for the decision are subsequently set out.

BACKGROUND

[4] By way of background, at the same time that the Representative for the Applicant, Mr Irvine of Workplace Negotiations (Mr Irvine), had lodged the Plant Operators’ Agreement he had, in addition, submitted for approval the 3D Earth Moving (2017) Pty Ltd Mechanics, Fitters and Workshop Personnel Enterprise Agreement 2017 (the Mechanics Agreement).

[5] The Plant Operators’ Agreement covered classifications including Dump Truck, Water Cart, Roller, Low Loader, Excavator, Dozer, Grader, Loader, Screening, Scraping, Site Clerk and Administration Staff.

[6] The Applicant requested to be heard concerning the issues that arose concerning both the Mechanics’ Agreement and Plant Operators’ Agreement (collectively the Agreements).

[7] The terms of the Plant Operators’ Agreement and the Mechanics’ Agreement, were, with the exception of pay rates, almost identical in their terms. The Mechanics’ Agreement did not include clauses 11.2.3 to 11.3.6 regarding travel allowance, or clause 13.2 regarding the payment of additional amounts. Due to the marked similarities between the Agreements a hearing was set down on 14 December 2017 to deal with both applications. The Applicant made submissions and gave evidence regarding the Agreements.

[8] There were numerous issues concerning the Agreements that the Commission had endeavoured to address with the Applicant over a period. Delays in this process had been inevitable due in part to the unavailability of Mr Irvine through no fault of his own. Further, there were subsequent issues arising from the Applicant’s submission of proposed draft undertakings. These were proffered to remedy some of the issues but in turn created more.

Issues

Contract of employment

[9] At the forefront of those issues was that the body of the Agreements included the following:

2. CONTRACT OF EMPLOYMENT

This Agreement has been negotiated in good faith and constitutes the contract of employment between…

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

AGLC: 3D Earthmoving 2017 Pty Ltd [2018] FWC 622
Case: [2018] FWC 622
Decision Date: 31 JANUARY 2018

CaseChat Overview and Summary

The applicant, 3D Earthmoving 2017 Pty Ltd, sought approval for the 3D Earth Moving 2017 Mobile Plant Operators Enterprise Agreement 2017. The applicant argued that the agreement was made in good faith and was fair and reasonable. The applicant also submitted that the agreement met the statutory requirements for approval under the Fair Work Act 2009. The respondent, a union, opposed the application on the basis that the agreement did not meet the statutory requirements for approval.

The court was required to determine whether the agreement was made in good faith and was fair and reasonable. The court also needed to decide whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. In particular, the court had to consider whether the agreement complied with the provisions of section 230 of the Act, which sets out the requirements for enterprise agreements to be approved.

The court found that the agreement was made in good faith and was fair and reasonable. The court also found that the agreement met the statutory requirements for approval under the Fair Work Act 2009. The court noted that the agreement contained provisions that were consistent with industry standards and that the agreement provided for a fair and reasonable balance of interests between the parties. The court also found that the agreement met the requirements of section 230 of the Act, including the requirement that the agreement be in writing and that it be signed by authorised representatives of the parties. The court approved the agreement.

The court made an order approving the 3D Earth Moving 2017 Mobile Plant Operators Enterprise Agreement 2017. The court found that the agreement was made in good faith and was fair and reasonable. The court also found that the agreement met the statutory requirements for approval under the Fair Work Act 2009. The court approved the agreement and directed that it be registered with the Fair Work Commission.

Orders