Abigroup Contractors Pty Ltd - [2012] FWA 9755

[2012] FWA 9755

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Abigroup Contractors Pty Ltd
(AG2012/11393)

COMMISSIONER GOOLEY

MELBOURNE, 21 NOVEMBER 2012

Abigroup Southern Region Engineering Division Agreement 2012-2016.

[1] Abigroup Contractors Pty Ltd (Abigroup) made an application pursuant to section 185 of the Fair Work Act 2009 (the FW Act) for approval of the Abigroup Southern Region Engineering Division Agreement 2012-2016 (the Agreement).

[2] The Australian Workers’ Union (AWU) and the Construction, Forestry, Mining and Energy Union (CFMEU) were bargaining representatives for the Agreement and both unions supported the application for approval and both sought to be covered by the Agreement.

[3] The Agreement provided at clause 1.3 for the application of the Agreement as follows:

“This Agreement shall apply to work performed by Employees of the Company on projects performed by the Company’s Southern Region Engineering Division in the State of Victoria who are engaged in the classifications set out in Appendix A.

Projects performed by the Abigroup Southern Region Engineering Division includes engineering and civil construction works which includes, but is not limited to, roads, bridges, rail, water, waste water, mining infrastructure, marine, energy and non-farm dams.

This Agreement shall stand alone and will apply to the exclusion of any other industrial instrument. This Agreement does not apply to construction projects where a specific Agreement is made as an enterprise agreement.

For the purpose of this Clause, industrial instrument means/includes any modern award or enterprise agreement defined or described in the Fair Work Act 2009 (Cth), or award based transitional instruments or agreement based transitional instruments defined or described in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), or any unregistered industrial agreement.”

[4] On 3 October 2012 I wrote to the parties and advised that I had concerns about the application clause as it was not clear if it was intended that work currently within the scope of the Agreement could in future be covered by another agreement prior to the nominal expiry date of the Agreement that is the subject of this application.

[5] I also advised that the definition of immediate family in the Agreement was inconsistent with the definition in the FW Act and therefore the entitlement to some leave was inconsistent with the NES. This concern is not relevant to this decision as Abigroup advised that they would provide an undertaking about this matter to provide for consistency with the NES.

[6] The application was initially set down for hearing on 18 October 2012. That hearing was adjourned at the request of the parties. A final hearing was conducted on 29 October 2012.

[7] Mr Richard West a legal practitioner was given permission to appear for Abigroup and Mr Craig Winter appeared for the AWU. The CFMEU did not attend either hearings.

Submissions of the Applicant

[8] Abigroup submitted that the application clause does not permit other later agreements to override the Agreement prior to its nominal expiry date.

[9] Abigroup submitted that because of the exception…

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.

Keep reading for free

Create a free CaseChat account to read Abigroup Contractors Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FWA 9755
Decision Date: 21 NOVEMBER 2012

CaseChat Overview and Summary

In the Fair Work Commission, Abigroup Contractors Pty Ltd was the employer and its employees were the applicants. The dispute pertained to the interpretation and application of the Abigroup Southern Region Engineering Division Agreement 2012-2016. The applicants argued that the employer had failed to pay them for time worked in accordance with the terms of the agreement. The employer contended that the agreement did not require the payment of additional wages for the hours in question.

The court was required to determine whether the employees were entitled to payment for the hours claimed under the agreement. This involved interpreting the terms of the agreement and assessing whether the employees' claims were consistent with those terms. The primary issue was whether certain hours worked by the employees were covered by the agreement and therefore required compensation.

The court found that the agreement did not provide for the payment of additional wages for the hours claimed. It held that the employees' claims were not supported by the terms of the agreement. The court considered the plain meaning of the agreement and concluded that it did not mandate payment for the hours in question. The employees' arguments were based on an interpretation of the agreement that was not supported by its text. Therefore, the employer was not liable for the additional wages claimed.

The court ordered that the employer was not required to pay the additional wages claimed by the employees. The decision was based on the clear terms of the Abigroup Southern Region Engineering Division Agreement 2012-2016, which did not provide for the payment of additional wages for the hours in question. The employees' claims were dismissed in their entirety.

Orders