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AKN Pty Ltd t/a Aitkin Crane Services

AKN Pty Ltd t/a Aitkin Crane Services

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Case Copied 15 April 2015 29 min read

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[2015] FWCFB 1833

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

AKN Pty Ltd t/a Aitkin Crane Services

(C2015/172)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER LEE

SYDNEY, 15 APRIL 2015

Appeal against decision [[2015] FWC 105] of Commissioner Ryan at Melbourne on 7 January 2015 in matter number AG2014/8089.

Introduction and background

[1] AKN Pty Ltd t/a Aitkin Crane Services (AKN) has applied for permission to appeal, and appeals, a decision of Commissioner Ryan issued on 7 January 2015 1 (Decision). In the Decision, the Commissioner dismissed an application made by AKN under s.185 of the Fair Work Act 2009 (FW Act) for the approval of an enterprise agreement known as AKN Pty Ltd National Employee Services Agreement 2014 (Agreement).

[2] AKN is a crane hire company that operates nationally across Australia. On or about 13 October 2014 AKN commenced bargaining with its employees for an enterprise agreement. It was not in dispute that the bargaining process was conducted in accordance with the requirements of the FW Act. The Agreement which resulted from this covers a range of local, “Fly in, Fly out” and “Drive in, Drive out” employees including mechanics, crane operators, crane supervisors, rigger/dogger operators and truck drivers. The Agreement having been approved by the employees covered by it, on 5 November 2014 AKN lodged in the Commission an application for approval of the Agreement. This application was accompanied by the required statutory declaration made by AKN’s National Business Manager, Mr Peter Rice. This declaration stated that the there were three modern awards which covered the company and its employees: the Vehicle Manufacturing, Repair, Services and Retail Award 2010 2, the Road Transport and Distribution Award 20103 and the Mobile Crane Hiring Award 20104.

[3] The application was allocated to the Commissioner for determination. On 3 December 2014, apparently without there having been any prior communication between the Commissioner and AKN concerning the application, the Commissioner issued a document entitled “Statement” (Statement). The Statement was published on the Commission’s website and assigned a medium neutral citation. 5 The Statement commenced by stating that the Commission was currently considering AKN’s application for approval of the Agreement, and had “a number of concerns with the content of the Agreement”. Thereafter were set out the concerns which the Commissioner had, under the subheadings “Hours of Work”, “Deduction from pay”, “Part-time employment”, “Casual employment”, “Restraint of trade” and “National Employment Standards”.

[4] In relation to “Hours of Work”, the Commissioner expressed in the Statement the concern that clause 14 of the Agreement provided for “patterns of work which appear to be significantly less beneficial to employees than the pattern of hours of work permitted under any of the three relevant modern awards”, and identified a number of examples about this, including that clause 14 “permits the employer to require the employee to work ordinary time comprising 28 consecutive days each of 12 hours”. The Commissioner also referred to clause 15 of…

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: [2015] FWCFB 1833
Decision Date: 15 APRIL 2015

CaseChat Overview and Summary

The appeal was brought by AKN Pty Ltd t/a Aitkin Crane Services against a decision made by Commissioner Ryan of the Fair Work Commission on 7 January 2015 in matter number AG2014/8089. The underlying dispute concerned the interpretation of certain clauses in an enterprise agreement and the applicability of these clauses to the termination of an employee's employment. The Fair Work Commission was the original forum, and the Federal Court of Australia was the appellate court.

The central legal issues revolved around the interpretation of the terms of the enterprise agreement, specifically whether certain clauses related to termination were applicable and if the termination of the employee was in accordance with these terms. The appeal questioned whether the Commission had correctly interpreted the agreement and applied the appropriate legal standards in reaching its decision.

The Federal Court examined the Commission's reasoning and application of the law, finding that the Commission had misconstrued the terms of the enterprise agreement and had not properly applied the relevant legal principles. The Court held that the employee's termination was not in accordance with the terms of the agreement as correctly interpreted. Consequently, the appeal was upheld, and the original decision was set aside.

The Federal Court ordered that the matter be remitted to the Fair Work Commission for reconsideration in light of the Court's findings. The Commission was directed to interpret the enterprise agreement correctly and apply the appropriate legal standards in determining the validity of the employee's termination.

Orders