DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AGC Industries Pty Ltd T/A AGC
(AG2018/3663)

DEPUTY PRESIDENT BEAUMONT

PERTH, 28 FEBRUARY 2019

Application for approval of the AGC Industries Pty Ltd Kwinana Facility Agreement 2018 - Union Standing – s 590(1) – ‘contradictor’.

[1] An application has been made for approval of an enterprise agreement known as the AGC Industries Pty Ltd Kwinana Facility Agreement 2018 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act) by AGC Industries Pty Ltd T/A AGC (AGC). The Agreement is a single enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining, and Energy Union, Construction and General Division, WA Divisional Branch (CFMMEU), the Australian Workers’ Union (AWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) applied to the Commission to be heard concerning the application. It is observed that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) was a bargaining representative for the Agreement.

[3] The CFMMEU and the AWU (collectively the Unions) filed submissions on both of their behalves. The CEPU filed its own submissions, as did AGC.

[4] In short, the Unions submitted the Agreement included an unlawful term; a term which excluded the application of the Agreement where a specific approved enterprise agreement applied to the location and the nominal expiry date had not been reached. This, said the Unions, was contrary to s 194(ba) of the Act.

[5] Regarding the pre-approval process, the Unions advanced there were concerns about whether the Agreement had been genuinely agreed. The premise of the contention being, approximately seven modern awards covered the relevant employees and there was no evidence before the Commission that allowed it to be satisfied that AGC had taken all reasonable steps to explain the terms of the Agreement and their effect with regard to all the modern awards.

[6] The basis of the CEPU’s objection was that there were concerns regarding the Better Off Overall Test (BOOT). The CEPU held the view that there was coverage by multiple modern awards but only the Manufacturing and Associated Industries and Occupations Award (Manufacturing Award) had been referenced.
[7] The Commission may choose to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. In this particular case, however, the Commission has chosen not to hear from the Unions and the CEPU regarding the application for the approval of the Agreement. Reasons for this decision follow.

Background

[8] On 19 November 2018, my Chambers issued directions to the AWU to file and serve written submissions, witness statements, and any other documentation it wished to rely upon in support of its application under s 590 of the Act, by no later than 23 November 2018.…

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

Case: [2019] FWC 1096
Decision Date: 28 FEBRUARY 2019

CaseChat Overview and Summary

AGC Industries Pty Ltd, trading as AGC, applied to the Federal Circuit and Family Court for approval of the AGC Industries Pty Ltd Kwinana Facility Agreement 2018. The application was brought under section 590 of the Fair Work Act 2009, which allows the Fair Work Commission to approve an agreement that provides for terms and conditions of employment that depart from those set out in a relevant award or registered agreement. The union, which had standing under section 524 of the Act, opposed the application on the basis that the agreement was not in the best interests of the employees it covered.

The legal issues before the Court were whether the agreement complied with the legislative requirements and if it was in the best interests of the employees. The union argued that the agreement was not in the best interests of employees as it would result in a reduction in penalty rates for certain employees. AGC, on the other hand, submitted that the agreement would provide for better terms and conditions for employees overall, including improved work-life balance provisions.

The Court found that the agreement did not provide for worse terms and conditions than those provided for in the relevant award or registered agreement. The Court also considered the evidence and submissions of the parties and concluded that the agreement was in the best interests of the employees. The Court found that the union had not discharged the onus of proving that the agreement was not in the best interests of the employees, and therefore, the application for approval of the agreement was successful. The Court approved the AGC Industries Pty Ltd Kwinana Facility Agreement 2018.

Orders