Application for approval of a single-enterprise agreement – Matter remitted from Full Bench – Judicial Review of Full bench decision –Agreement satisfies s 180(5) –No other reasonable grounds for believing that the Agreement has not been genuinely agreed – Group of employees fairly chosen – Undertakings offered regarding clause 9 and second paragraph of clause 3.3 - Certain other terms inconsistent with NES – Further undertakings required – Agreement meets requirements subject to undertakings.

Background

[1] This matter has some history. I refer to the earlier decisions of the Full Bench 1 and the Full Federal Court2 by way of background as I do not intend to revisit the entire background in this decision. The key points are summarised below.

[2] CPB Contractors Pty Ltd (“CPB”) applied to the Fair Work Commission (FWC) for approval of an enterprise agreement known as the CPB Contractors NSW Civil Works Enterprise Agreement 2017-2021 (the Proposed Agreement) on 7 November 2017. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[3] Throughout this decision for convenience I refer to the CFMMEU by its current name. The Agreement was initially approved by the FWC on 9 May 2018. 3 The CFMMEU appealed this decision and the Full Bench allowed the appeal in its decision of 26 September 20184 on two bases:

• The final provisions of cl 3.3 of the Agreement was rendered unlawful, by virtue of s. 194(ba) of the Act; 5 and

• The FWC Full Bench had erred in accepting an undertaking concerning cl 9 of the Agreement. 6

[4] The matter was remitted to me for rehearing.

[5] CPB Contractors sought judicial review of the aspect of the decision of the Full Bench on the question of whether the Commission could revisit the extent to which the final provisions of cl 3.3 of the Agreement may be unlawful under s.194(ba) of the Act.

[6] On appeal, the Full Federal Court concluded in its decision of 2 May 2019 that the Full Bench had erred in rendering the final provisions of cl. 3.3 unlawful, and made a Declaration to this effect. 7

[7] I conducted a Directions Hearing with representatives of the CFMMEU, the AWU and the Applicant by telephone on 13 May 2019. Following the telephone conference, I issued Directions for the filing of any further materials relevant to the grounds of appeal of the Full Bench decision and subject to the Declarations of the Full Federal Court. Parties subsequently requested the opportunity to file reply submissions and this was granted.

[8] At the Directions Hearing, it was discussed and settled that there were a number of matters which, although not the focus of the Federal Court appeal, were nonetheless open for me to consider on remittance, at the guidance 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 Application by CPB Contractors Pty Limited

Details

AGLC: Application by CPB Contractors Pty Limited [2019] FWC 6198
Case: [2019] FWC 6198
Decision Date: 5 SEPTEMBER 2019

CaseChat Overview and Summary

CPB Contractors Pty Limited made an application to the Fair Work Commission for approval of a single-enterprise agreement. The company sought judicial review of the Full Bench’s decision which had remitted the matter to the Commission for reconsideration. The core dispute centred on whether the agreement satisfied the statutory requirements under the Fair Work Act and if the agreement had been genuinely agreed upon. The Commission was tasked with determining whether the agreement complied with section 180(5) of the Act, specifically assessing if there were reasonable grounds to believe that the agreement had not been genuinely agreed to and if the group of employees was fairly chosen.

The legal issues before the Commission involved scrutinising whether the agreement met the criteria for genuine agreement as per section 180(5) of the Fair Work Act. This required an assessment of whether the agreement had been genuinely negotiated and agreed upon by the parties involved. Additionally, the Commission had to determine if the group of employees selected for the agreement was fairly chosen and if the terms of the agreement aligned with the National Employment Standards (NES). The Commission also needed to consider whether certain terms within the agreement were inconsistent with the NES and if any further undertakings were necessary to ensure the agreement's validity.

In its reasoning, the Commission found that the agreement satisfied the requirements of section 180(5) of the Act, and there were no reasonable grounds to believe it had not been genuinely agreed upon. The Commission confirmed that the group of employees was fairly chosen. However, certain terms within the agreement were inconsistent with the NES, prompting the need for additional undertakings. The Commission concluded that, subject to these undertakings, the agreement met the necessary requirements for approval. The Commission subsequently required the parties to provide further undertakings to ensure compliance with the NES and address other inconsistencies identified.

The final orders of the Commission included the approval of the single-enterprise agreement, subject to the specified undertakings. These undertakings required CPB Contractors to ensure that certain terms of the agreement aligned with the NES and addressed the identified inconsistencies. The Commission's decision reaffirmed the importance of genuine agreement and fair representation in the negotiation and approval of enterprise agreements.

Orders