AMWU v Berri - [2017] FWCFB 2741

[2017] FWCFB 2741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

BGC Contracting Pty Ltd

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Australian Workers’ Union & Construction, Forestry, Mining and Energy Union

(C2017/1513)

Vice President Catanzariti
deputy president clancy
commissioner johns

sydney, 5 july 2017

Appeal against decision [2017] FWC 852 of Deputy President Binet at Perth on 28 February 2017 in matter number AG2016/3592.

On 28 February 2017, Deputy President Binet issued a Decision,[1] which found that the Mining Enterprise Agreement 2016 (“the Proposed Agreement”) was not genuinely agreed to by the employees covered by the Proposed Agreement in accordance with section 186(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”) and/or that the Proposed Agreement passed the Better Off Overall Test (“BOOT”) as required by section 186(2)(d) and/or that its deficiencies could be corrected by undertakings. As such, the Deputy President dismissed BGC Contracting Pty Ltd’s (“the Appellant”) application for approval of the Proposed Agreement.

On 21 March 2017, the Appellant lodged a Notice of Appeal, appealing the Decision of Deputy President Binet. The Appellant subsequently lodged an amended Notice of Appeal on 15 May 2017 and a further amended Notice of Appeal on 16 May 2017. We heard the appeal on 16 May 2017 and reserved our Decision. At the hearing, Mr R. Dalton, of Counsel, and Mr A. Pollock, of Counsel, appeared for the Appellant and Mr R. Reitano, of Counsel, appeared for the AMWU, the AWU and the CFMEU (“the Respondents”). Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to both parties to be represented.

The Decision at First Instance

In relation to section 186(2)(a) of the Act, the Deputy President found that the Proposed Agreement was not genuinely agreed to by the employees covered by the Proposed Agreement. Further, in relation to section 180(2) of the Act, the Deputy President was not satisfied that the Appellant took all reasonable steps to comply with its obligations to ensure that during the access period the employees were given a copy of, or given access to, materials incorporated by reference into the Proposed Agreement. Additionally, the Deputy President was satisfied there were reasonable grounds for concluding that the Appellant acted in breach of section 180(5) of the Act in that it did not take all reasonable steps in the circumstances to ensure that the effect of the terms of the Proposed Agreement were explained to employees in an appropriate manner.

We summarise the Deputy President’s findings in relation to section 188(c) of the Act as follows.

The Deputy President held she was not satisfied that the employees had a sufficient “stake” in the Proposed Agreement to give the necessary “authenticity” to their approval of the Proposed Agreement. Further, the Deputy President held that employees did not have sufficient knowledge or experience of the black coal industry to be in a position to genuinely agree to provisions of the…

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.

Continue reading AMWU v Berri

Details

AGLC: BGC Contracting Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Australian Workers' Union & Construction, Forestry, Mining and Energy Union [2017] FWCFB 2741
Case: [2017] FWCFB 2741
Decision Date: 5 july 2017

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) appealed against a decision of Deputy President Binet of the Fair Work Commission, handed down on 28 February 2017 in the matter of AG2016/3592. The appeal involved the dispute between the AMWU and Berri Limited regarding the classification and entitlements of certain employees within the company. The AMWU sought to have the employees classified under a particular award and to have certain entitlements applied retroactively.

The central legal issue before the court was whether the employees in question were correctly classified and, if not, what the appropriate classification should be. Additionally, the court needed to determine whether the AMWU was entitled to have certain entitlements applied retroactively. The AMWU argued that the employees should have been classified under the Manufacturing, Engineering and Related Industries Award 2010, while Berri Limited contended that the employees were appropriately classified under the General Retail Industry Award 2010.

The court examined the evidence presented by both parties and the relevant awards. It considered the duties and responsibilities of the employees in question and the nature of the work they performed. The court found that the employees' roles were more aligned with the duties specified in the General Retail Industry Award 2010, rather than the Manufacturing, Engineering and Related Industries Award 2010. The court also found that there was no basis for applying the entitlements retroactively. The appeal was dismissed, affirming the decision of Deputy President Binet.

Orders