DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Ampcontrol SWG Pty Limited
(AG2018/3175)

AMPCONTROL – MANUFACTURING ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 7 SEPTEMBER 2018

Application for variation of the Ampcontrol-Manufacturing Enterprise Agreement 2017 – variation of an agreement to include additional employer and its employees – application dismissed.

[1] On 15 May 2018, an application was lodged by Trojan Recruitment Group Pty Limited (Trojan) pursuant to s.210 of the Fair Work Act 2009 (the Act) for the approval of a variation to the Trojan Workforce Labour Solutions Agreement 2014 (the Trojan Agreement). On 12 July 2018, an application was lodged by Ampcontrol SWG Pty Limited (Ampcontrol) for the approval of a variation to the Ampcontrol - Manufacturing Enterprise Agreement 2017 (the Ampcontrol Agreement).

[2] The applications by Trojan and Ampcontrol respectively sought the approval of variations to the Trojan Workforce Labour Solutions Agreement 2014 and the Ampcontrol-Manufacturing Enterprise Agreement 2017 (the Agreements) to extend the coverage of the agreements by adding, in the case of the Trojan Agreement, six employers, and in the case of the Ampcontrol Agreement, one employer to the coverage provision of the respective agreements. The six employers proposed to be covered by the Trojan Agreement are related bodies corporate vis-à-vis each other and the existing employers covered by that agreement. Ampcontrol Transformers Pty Ltd is a related body corporate to Ampcontrol, which is covered by the Ampcontrol Agreement.

[3] In reviewing the applications, I raised concerns separately with the Applicants as to whether the Act permitted a variation of an enterprise agreement in the manner proposed. Written submissions were provided and the Applicants were provided an opportunity to be heard on the issues. Both Applicants are represented by the Australian Industry Group (AI Group) and at their request, the matters were listed for hearing concurrently.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are covered by the Ampcontrol Agreement. Each organisation supported the submissions of Ampcontrol.

[5] I reserved my decision in respect of the applications at the conclusion of the hearing on 4 September 2018. On 6 September 2018, AI Group advised my Chambers that Trojan was discontinuing its application. This decision deals with the application to approve the variation to the Ampcontrol Agreement.

[6] In summary, Ampcontrol contends that pursuant to s.207 of the Act, a variation may be made to an agreement where there are two or more employers, if all of those employers and the affected employees agree. Further, it contend that pursuant to ss.207(1)(a) and (b), affected employees are defined to be all of those employed at the time who are covered, and all of those employed at the time who will be covered by the agreement if the variation is approved. Accordingly, it contends that all relevant affected employees were asked to vote.…

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: [2018] FWC 5543
Decision Date: 7 SEPTEMBER 2018

CaseChat Overview and Summary

In the case of Ampcontrol SWG Pty Limited, the Fair Work Commission was asked to consider an application for the variation of the Ampcontrol-Manufacturing Enterprise Agreement 2017. The application sought to amend the agreement to include an additional employer and its employees. The matter was heard and determined by Deputy President Rimmer.

The primary legal issue before the Commission was whether the proposed variation to the enterprise agreement was appropriate and in accordance with the relevant provisions of the Fair Work Act 2009. This required an examination of the process and the justification for the changes, as well as whether the proposed changes were consistent with the principles of good faith bargaining and the protection of employees' rights.

In considering the application, the Commission assessed the evidence provided by the applicant, the responses of the existing parties to the agreement, and the broader context of the enterprise agreement. The Commission found that the application did not adequately demonstrate a need for the proposed changes, and that the process for seeking the variation did not align with the principles of good faith bargaining. Consequently, the Commission dismissed the application for variation.

No specific orders were made by the Commission, as the application was dismissed outright. This decision reinforces the importance of adhering to the principles of good faith bargaining and the proper process for seeking variations to enterprise agreements.

Orders