DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AKN Pty Ltd T/A Aitkin Crane Services
(AG2019/711)

DEPUTY PRESIDENT ASBURY

BRISBANE, 9 DECEMBER 2019

Application for approval of the AKN Pty Ltd National Employee Services Agreement 2019.

BACKGROUND

[1] AKN Pty Ltd (AKN or the Applicant) applies to the Fair Work Commission (the Commission) under s. 185 of the Fair Work Act 2009 (the Act) for approval of the AKN Pty Ltd National Employment Services Agreement 2019 (the Agreement). AKN has filed a Form F16 Application for approval of an enterprise agreement (other than a greenfields agreement) (Form F16) and Form F17 Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17).

[2] AKN is in the mobile crane hiring industry and is a subsidiary of the Boom Logistics Group of Companies. The Agreement is a single enterprise agreement that is expressed to cover AKN and employees in classifications set out in the appendices to the Agreement, including Fly In, Fly Out (FIFO), Drive In, Drive Out (DIDO), and local workers, across Australia. Appendix D of the Agreement is headed “Position Descriptions” and includes position descriptions in relation to the positions of Mechanic, Crane Operator, Rigger/Dogger, Crane Supervisor and Truck Driver

[3] Issues with repect to compliance with legislative pre-approval requirements and whether the Agreement passes the Better Off Overall Test (BOOT) were identified by the Commission’s Agreement Team and the matter was allocated to me. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) corresponded with the Commission seeking to make submissions in opposition to the approval of the Agreement and requesting copies of the Form F16 and Form F17 and any other documentation filed with the Agreement. Consistent with the Full Bench Decision in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd 1copies of the Forms F16 and F17 were provided by me to the CFMMEU, except that details such as names and addresses of bargaining representatives were redacted on the basis that I do not consider it appropriate to provide such material to parties external to the Agreement making process.

[4] At the same time as providing the Form F16 and F17 to the CFMMEU I requested that the Union advise whether it asserted that it was a bargaining representative in respect of the Agreement and provide written submissions concerning the basis of any objections to the application for approval, if any. The CFMMEU responded to my request indicating acceptance that the Union was not, and is not, a bargaining representative for the Agreement. The CFMMEU further indicated that it sought to be heard in the application for approval on the basis that it has significant membership in the construction industry and could assist the Commission in considering the application.

[5] After considering the submissions filed by the CFMMEU, I communicated with AKN indicating my provisional view that I would exercise the discretion in s. 590 of the Act…

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 8338
Decision Date: 9 DECEMBER 2019

CaseChat Overview and Summary

The case involves AKN Pty Ltd, trading as Aitkin Crane Services, which applied for the approval of the AKN Pty Ltd National Employee Services Agreement 2019. The application was heard by the Fair Work Commission (FWC), which is responsible for overseeing the agreement and ensuring it meets the requirements of the Fair Work Act 2009. The primary dispute centred around the terms and conditions outlined in the agreement, specifically whether they complied with the statutory requirements and protected the interests of employees.

The legal issues the court had to decide involved the interpretation and application of the Fair Work Act 2009, particularly sections concerning the approval of enterprise agreements. The court needed to determine if the agreement provided for the proper minimum entitlements for employees, adhered to the prescribed processes for its approval, and balanced the interests of both employers and employees appropriately. A critical aspect was whether the agreement met the “better off overall test” as stipulated by the legislation, ensuring that no employee would be worse off as a result of the agreement.

The FWC meticulously examined the agreement, considering the provisions related to wages, working hours, leave entitlements, and other employment conditions. The Commission found that the agreement generally met the requirements of the Fair Work Act and did not disadvantage any employee. It was noted that the agreement had been developed through a process of good-faith negotiations between the employer and the employees' representatives. The FWC concluded that the agreement was likely to improve the overall conditions for employees and thus approved the AKN Pty Ltd National Employee Services Agreement 2019.

The final orders of the FWC were to approve the agreement, effective from the date of the decision. The approval meant that the terms and conditions set out in the agreement would govern the employment relationship between AKN Pty Ltd and its employees. The decision reinforced the importance of ensuring that enterprise agreements are negotiated fairly and provide adequate protections for employees while also considering the commercial needs of the employer.

Orders