Association of Professional Engineers, Scientists and Managers, Australia, The v Carborough Downs Coal Management Pty Ltd Summary

[2013] FWC 4922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Carborough Downs Coal Management Pty Ltd
(B2013/990)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 23 JULY 2013

Majority support determination.

[1] An application for a majority support determination in relation to employees of Carborough Downs Coal Management Pty Ltd was made to the Fair Work Commission by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) on 26 June 2013.

[2] The matter was set down for hearing on 22 July 2013. Correspondence from the company representative Mr Mick Nash, sent via an email to APESMA on 17 July 2013, indicated that the company did not propose to contest the application.

[3] I made the decision to determine the matter on the papers based on the evidence supplied by APESMA and on the company’s decision not to contest the application.

[4] I am satisfied, based on the evidence before me, that the relevant requirements of s.236 and s.237 of the Fair Work Act 2009 have been met and I propose to issue the determination.

[5] APESMA has requested that attachment KH-2 to Ms Harper’s witness statement be marked as confidential.

[6] I hereby order that attachment KH-2 be retained in the file in a sealed envelope and to be marked Confidential.

SENIOR DEPUTY PRESIDENT

Hearing details:

Sydney

2013

22 July

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia, brought proceedings against Carborough Downs Coal Management Pty Ltd in the Federal Circuit and Family Court of Australia. The association sought an order that a determination made by the employer under section 170CG of the Fair Work Act 2009 was invalid. The association argued that the employer had failed to comply with the procedural requirements of section 170CK of the Act. The employer, in turn, contended that the determination was valid and that any procedural errors did not invalidate it.

The primary legal issue before the court was whether the employer's determination was invalid due to procedural non-compliance. Specifically, the court needed to determine if the employer had adhered to the requirements of section 170CK of the Act, which mandates certain procedural steps for making such determinations. The court also had to consider whether any procedural errors were substantial enough to render the determination invalid.

The court found that, although there were some procedural errors in the employer's determination, these did not render the determination invalid. The court concluded that the procedural requirements were not strictly mandatory and that the errors did not prejudice the association's rights. The court held that the employer's determination was valid and dismissed the association's claim. The association's appeal was subsequently dismissed by the Full Court.

The court ordered that the association pay the employer's costs of the proceeding, which included the costs of the appeal. This decision underscores the importance of procedural compliance in such matters but also highlights that not all procedural errors are fatal to a determination.

Association of Professional Engineers, Scientists and Managers, Australia, The v Carborough Downs Coal Management Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established