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AMWU v Broadspectrum (Australia) Pty Ltd

AMWU v Broadspectrum (Australia) Pty Ltd

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Case Copied 13 November 2018 52 min read

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[2018] FWCFB 6556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian Manufacturing Workers’ Union
v
Broadspectrum (Australia) Pty Ltd
(C2018/4075)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
COMMISSIONER MCKENNA

SYDNEY, 13 NOVEMBER 2018

Decision of Vice President Hatcher and Deputy President Asbury

Introduction and background

[1] The Australian Manufacturing Workers’ Union (AMWU) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner McKinnon issued on 4 July 2018 1 (Decision). The Decision concerned an application made by the AMWU for a scope order pursuant to s 238 of the Fair Work Act 2009 (FW Act) with respect to bargaining for an enterprise agreement with Broadspectrum (Australia) Pty Ltd (Broadspectrum) in respect of its defence materiel maintenance contracts in Victoria. The circumstances in which a scope order may be applied for and made are set out in s 238(1)-(4) as follows:

238 Scope orders

Bargaining representatives may apply for scope orders

(1) A bargaining representative for a proposed single-enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order) under this section if:

(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and

(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation

(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative to give notice of concerns

(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

When the FWC may make scope order

(4) The FWC may make the scope order if the FWC is satisfied:

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

(b) that making the order will promote the fair and efficient conduct of bargaining; and

(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(d) it is reasonable in all the circumstances to make the order.

[2] In the Decision the Commissioner proceeded on the basis, which was said to have been agreed between the parties, that a scope order could only be made pursuant to s 238 if bargaining for a proposed enterprise agreement had commenced in accordance with the FW…

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] FWCFB 6556
Decision Date: 13 NOVEMBER 2018

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) has appealed against a decision of Commissioner McKinnon who dismissed an application for a scope order under section 238 of the Fair Work Act 2009 (FW Act). The Commissioner had concluded that bargaining for a proposed enterprise agreement had not yet commenced. The AMWU argued that the Commissioner had erred in concluding that bargaining had ended when a majority of employees of Broadspectrum had voted to approve a 2017 proposed agreement. Broadspectrum had submitted that the appeal should be refused because it was futile and that the Commissioner had made a recommendation which should not be interfered with. The appeal was heard by Vice President Hatcher and Deputy President Asbury. The appeal was allowed, the Commissioner’s decision quashed and the AMWU’s application remitted for re-hearing before a different single member of the Commission. The reasoning of the majority was that the Commissioner had erred in concluding that the AMWU’s application for a scope order should be dismissed because it was not satisfied that bargaining had commenced. The Commissioner had erred in concluding that the 2017 proposed agreement had been “made” in accordance with section 182(1) of the FW Act when the Commissioner found that Broadspectrum had failed to comply with section 173(3) of the Act. The Commissioner’s error was compounded by the fact that the Commissioner had proceeded to make a recommendation concerning the merits of the AMWU’s application, having found that she was without jurisdiction to make a scope order. Commissioner McKenna dissented from the majority, on the basis that he considered the Commissioner’s conclusion that bargaining had ceased was correct and that the AMWU’s application should have been dismissed for want of jurisdiction.

Orders