[1] An application has been made for approval of an enterprise agreement known as the 3D Earth Moving (2017) Pty Ltd Mechanics, Fitters and Workshop Personnel Enterprise Agreement 2017 (the Mechanics’ 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 Mechanics Agreement is said to cover Level 1 Apprentice Fitter/Mechanic, Level 2 Trades Assistant/Store person, Level 3 Fitter/Serviceman: Skilled/Works under supervision, Level 4 Fitter/Mechanic /Serviceman and Level 5-7 Fitter/Mechanic/Auto Elec/Serviceman. It is submitted that the Mining Industry Award 2010 is the relevant modern award for this matter.

[3] The application to approve the Mechanics’ 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 Mechanics’ Agreement he had, in addition, submitted for approval the 3D Earth Moving 2017 Mobile Plant Operators Enterprise Agreement (the Plant Operators’ 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…

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 623
Case: [2018] FWC 623
Decision Date: 31 JANUARY 2018

CaseChat Overview and Summary

The case involves an application for the approval of the 3D Earth Moving 2017 Mechanics, Fitters and Workshop Personnel Enterprise Agreement 2017. The application was made by the employer, 3D Earthmoving 2017 Pty Ltd, to the Fair Work Commission (FWC). The union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), did not oppose the application but sought clarification on the interpretation of certain terms in the agreement. The legal issues before the FWC were to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009, including whether it provided for a fair and reasonable process for resolving disputes and whether it was consistent with the Fair Work (Registered Organisations) Act 2009. The FWC examined the terms of the agreement and considered submissions from both parties. The FWC found that the agreement was consistent with the relevant legislation and met the criteria for approval. The FWC accepted the union's submissions on the interpretation of certain terms, providing clarification on the application of those terms. The FWC approved the agreement subject to the clarifications provided.

The FWC's reasoning focused on the interpretation of the agreement's terms and whether they complied with the requirements of the Fair Work Act. The FWC noted that the agreement provided for a fair and reasonable process for resolving disputes and that it was consistent with the relevant legislation. The FWC also found that the agreement did not contain any terms that were contrary to public policy or that would undermine the rights of employees. The FWC's outcome was to approve the agreement, subject to the clarifications provided by the union. The FWC's decision was based on a careful consideration of the agreement's terms and the relevant legislation, and it provided important guidance on the interpretation of certain terms. The final orders of the FWC were that the agreement be approved subject to the clarifications provided by the union. The FWC's decision provides certainty for both the employer and employees and ensures that the agreement is consistent with the relevant legislation.

Orders