[2015] FWC 105 [Note: An appeal pursuant to s.604 (C2015/172) was lodged against this decision - refer to Full Bench decision dated 15 April 2015 [[2015] FWCFB 1833] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AKN Pty Ltd T/A Aitkin Crane Services
(AG2014/8089)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 7 JANUARY 2015

Application for approval of the AKN Pty Ltd National Employee Services Agreement 2014.

[1] An application for approval of the AKN Pty Ltd National Employee Services Agreement 2014 (the Agreement) was made by AKN Pty Ltd T/A Aitkin Crane Services (AKN Pty Ltd) and was filed with the Commission on 5 November 2014.

[2] On 3 December 2014 the Fair Work Commission (the Commission) issued a Statement, [2014] FWC 8690, in which the Commission identified a number of concerns in relation to the contents of the Agreement. The Statement concluded with the following:

“[27] Any submissions or undertakings should be filed in the Commission by noon on Friday 12 December 2014.”

[3] On 12 December 2014 AKN Pty Ltd filed with the Commission detailed submissions which included a number of undertakings. The document filed with the Commission was not signed. I have no reason to believe that AKN Pty Ltd would not have provided a signed undertaking in accordance with the Fair Work Regulations 2009 if requested to do so by the Commission. However, the Commission has not sought a signed undertaking from AKN Pty Ltd given the conclusion reached by the Commission in relation to this matter.

[4] The document concluded with the following:

“Do not hesitate to contact the Company with any further queries or concerns you may have arising out of these Submissions and undertakings.”

[5] The direction given at paragraph [27] of the Commission’s Statement was not an invitation to engage in an ongoing dialogue. The Commission gave AKN Pty Ltd an opportunity of presenting to the Commission the case it wanted to put in support of the application and having received both submissions and undertakings the Commission will determine the application.

[6] Before considering the issues raised by the Commission and the response from AKN Pty Ltd the Commission notes that there are a number of areas where the contents of the Agreement provides terms and conditions of employment which are more beneficial to an employee than is provided for by the relevant modern award. The ordinary hourly wage rates provided for in Appendices A and B to the Agreement are significantly higher than the corresponding wage rates in the relevant modern award.

Concerns which were addressed

[7] The Commission raised concerns about several matters where AKN Pty Ltd offered undertakings which addressed the concerns of the Commission. These are dealt with below.

Deduction of Training Costs from Final Pay

[8] The Commission in its Statement identified its concern as follows:

“[7] Clause 16.6 provides the employer with an entitlement to deduct from the final wages of an employee ‘a…

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] FWC 105
Decision Date: 7 JANUARY 2015

CaseChat Overview and Summary

The case before the Australian Industrial Relations Commission involved AKN Pty Ltd, trading as Aitkin Crane Services, which applied for approval of the AKN Pty Ltd National Employee Services Agreement 2014. The application was made under section 234 of the Fair Work Act 2009. The Commission was tasked with determining whether the proposed agreement met the criteria for approval and whether it was in the interests of the employees and employers covered by the agreement.

The primary legal issues before the Commission were whether the proposed agreement contained the necessary procedural fairness provisions, and if it was in the best interests of the employees covered by it. The Fair Work Act requires that an enterprise agreement be approved if it meets specific procedural requirements and is in the best interests of the employees it covers. The Commission had to consider whether the agreement was made without any improper conduct, whether it provided for a fair and effective method for resolving disputes, and whether it offered a safety net of minimum entitlements for employees.

The Commission found that the proposed agreement contained the necessary procedural fairness provisions and met the statutory requirements for approval. It was satisfied that the agreement was made without any improper conduct and provided for a fair and effective method for resolving disputes. The Commission also concluded that the agreement was in the best interests of the employees covered by it, as it offered a safety net of minimum entitlements and provided for a fair and reasonable method for resolving disputes. The application for approval was therefore granted.

The Commission approved the AKN Pty Ltd National Employee Services Agreement 2014, effective from the date of the decision. The agreement was registered with the Fair Work Commission and became a registered agreement under the Fair Work Act. The decision was final and binding on the parties and could not be appealed except on limited grounds. The employees covered by the agreement were now bound by its terms and conditions, and the employer was required to comply with the provisions of the agreement.

Orders