DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ALE Heavylift (Australia) Pty Ltd
(AG2021/6222)

ALE HEAVYLIFT (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 17 AUGUST 2021

Application for approval of the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ALE Heavylift (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] The copy of the Agreement as provided to the Commission included, at the end of the document, the text of the Model Flexibility Term and, at the start of the Agreement stating “Note - the model flexibility term is taken to be a term of this agreement and can be found at the end of the agreement”. Those words and the Model Flexibility Term were included in the document put to employees during the vote and were not included by the Commission. For the avoidance of doubt, the Commission has not exercised the obligation provided for within s.202 since the parties themselves bargained for a flexibility term in the same form as the Model Flexibility Term.

[4] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) have requested and was provided with copies of the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s Support Declaration in support of an application for approval of an enterprise agreement, and other documentation filed in support of the application in redacted form to protect personal information. While providing written submissions to the Commission on its interest the CFMMEU was given an opportunity to make oral submissions on the subject but declined.

[5] Upon allocation of the application to me, I sought the Applicant’s views on the CFMMEU’s request for access to documents and request to be heard. The Applicant opposes both requests as set out below.

The CFMMEU has not demonstrated that it is a bargaining representative

[6] The Applicant submits that the CFMMEU has not demonstrated that it has a member who is:

● an employee of ALE; and
● would be covered by the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2021.

[7] It has been accepted by the Commission that the Act does not provide for a right of intervention in proceedings before the Commission by a non-party. 1

The CFMMEU otherwise has no right to be heard, as it has no right, interest or legitimate…

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: [2021] FWCA 4865
Decision Date: 17 AUGUST 2021

CaseChat Overview and Summary

The matter before the court was an application by ALE Heavylift (Australia) Pty Ltd for the approval of the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2021. The dispute centred around whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The Fair Work Commission was the forum for this application.

The primary legal issue before the court was whether the enterprise agreement, as proposed, complied with the relevant provisions of the Fair Work Act 2009, particularly focusing on the procedural fairness and the mandatory substantive provisions that must be included in such agreements. This included scrutinising whether the agreement adhered to the procedural steps outlined in the Act and whether it contained the mandated minimum terms and conditions.

In its reasoning, the court examined the procedural fairness of the agreement-making process and assessed whether the agreement met the substantive requirements of the Fair Work Act 2009. The court considered the evidence presented by the applicant regarding the consultation process with employees and whether the agreement was made in good faith. Additionally, the court evaluated the contents of the agreement to ensure they included the minimum terms and conditions as required by the Act. After thorough analysis, the court concluded that the agreement was procedurally sound and contained all necessary substantive provisions. Consequently, the court approved the enterprise agreement.

The final orders of the court were to approve the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2021, subject to the conditions and terms as outlined in the agreement. The court's approval was contingent on the continued compliance with the Fair Work Act 2009 and any subsequent amendments to the legislation.

Orders