Asurco Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union
[2015] FWCFB 7498
•4 NOVEMBER 2015
| [2015] FWCFB 7498 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Construction, Forestry, Mining and Energy Union
(C2015/5864)
VICE PRESIDENT WATSON | MELBOURNE, 4 NOVEMBER 2015 |
Appeal against decision [2015] FWC 5532 of Senior Deputy President O'Callaghan at Adelaide on 12 August 2015 in matter number B2015/761 - Permission to appeal – Whether decision contains appealable error – Fair Work Act 2009, s.604.
Introduction
[1] This is an application for permission to appeal under s.604 of the Fair Work Act 2009 (the Act) against a decision of Senior Deputy President O’Callaghan handed down on 12 August 2015. The decision of the Senior Deputy President concerned an application for a protected action ballot order issued by the Fair Work Commission (the Commission) pursuant to s.437 of the Act.
[2] At the hearing of the matter on 15 October 2015 Mr S. Richter appeared on behalf of Asurco Contracting Pty Ltd (Asurco) and Mr P. Boncardo appeared with Ms L. Dooley on behalf of Construction, Forestry, Mining and Energy Union (the CFMEU). At the conclusion of the hearing of the matter we announced our decision to refuse leave to appeal. These are the reasons for that decision.
Decision under Appeal
[3] The decision of the Senior Deputy President relates to an application made by the CFMEU pursuant to s.437 of the Act for the Commission to issue an order in relation to employees of Asurco who will be covered by a proposed enterprise agreement to replace the Asurco Contracting Pty Ltd CFMEU Enterprise Agreement 2010-2013, and for whom the CFMEU is a bargaining representative.
[4] Negotiations for the new enterprise agreement had started on 19 February 2014 and the parties had not yet achieved an agreed position by July 2015. The issues that remained in dispute concerned: wage rate increase, 38 hour week, inclement weather changes, work start times, and JLT income protection.
[5] The CFMEU contended that it was genuinely trying to reach an agreed position and the requirements of s.443 of the Act meant that the Commission must make a protected action ballot order.
[6] Asurco contended that the application was premature and the CFMEU was not genuinely trying to reach an agreement.
[7] There was no dispute that the application was made consistent with s.437 of the Act. The Senior Deputy President’s conclusions in relation to s.443(1)(b) are expressed in the following passage from his decision:
“[11] In the circumstances here, and on the basis of the evidence before me, I have concluded that there were negotiations between the parties, that these negotiations fixed on a proposed wage increase, but did not resolve the CFMEU concerns about various changes to the existing agreement which were sought by Asurco. These include changes to working hours arrangements, inclement weather provisions and contributions to income protection insurance costs.
[12] However, the evidence presented by the CFMEU, and the absence of evidence on the part of Asurco, must lead to a conclusion that there were various discussions which led to a proposal being put to, and rejected by, the Asurco employees. The agreement proposal that was put to employees was a detailed and sophisticated proposition which reflected matters which were both agreed with the CFMEU and were not agreed. That situation was quite different to that which was addressed in Total Marine Services in the following terms:
“[36] In this conclusion we believe that the Commissioner fell into error. It is clear on the evidence that the negotiations involved limited face to face meetings and limited articulation of many of the claims. Certain matters were being dealt with in concurrent industry negotiations. Many items were only set out in a list of headings and were not explained or discussed. The wage claim had not been specified. There is nothing to suggest that in taking the steps that it did, the MUA was other than genuine. Nevertheless, in our view it cannot be said in these circumstances that the MUA had genuinely tried to reach an agreement. The steps it had taken were preparatory to developing an agreement but in our view insufficient to satisfy the test its application needed to meet. The error made by the Commissioner involves both a mistake of fact and an error of principle.”
[13] I am not satisfied that the behaviour of the CFMEU since that employee ballot was conducted was such that it requires that I conclude that the CFMEU is no longer genuinely trying to reach an agreement. Again, the manner of the negotiation process may give rise to questions relative to good faith bargaining obligations and issues of competence but falls substantially short of establishing that the CFMEU is not genuinely trying to reach an agreement. If Asurco had compelling evidence in this respect it should have been provided to me.
[14] Consequently, I am satisfied that the requirements of s.443(1) have been met such that the FWC must make a protected action ballot order.”
Appeal Grounds
[8] The grounds of appeal allege that the decision of the Senior Deputy President was wrong at law and that he reversed the onus of proof in applying s.443 of the Act at paragraph 13 of his judgment.
[9] Asurco submits that the decision was wrong at law for two reasons. First, it submits that the Senior Deputy President could not be reasonably satisfied in the material before him that the CFMEU had been, and was genuinely trying, to reach an agreement with Asurco. Asurco submits that the Senior Deputy President found the CFMEU’s evidence to be plausible but raised issues with regards to a witness’ evidence. It submits that evidence which is found to be merely plausible is not sufficient to support any finding of fact regardless of whether the evidence is contradicted or not and is not evidence which can give rise to the requisite finding of fact.
[10] Second, Asurco submits that the Senior Deputy President wrongly applied the law in Total Marine Services Pty Ltd v Maritime Union of Australia 1 to the evidence.
[11] Asurco states that the test at s.443(1)(b) of the Act requires the Commission to be satisfied that the applicant for a protected action ballot order has been, and is genuinely trying to reach an agreement. It contends that the section clearly places an onus on the applicant to establish facts to the satisfaction of the Commission and that paragraph 13 of the Senior Deputy President’s judgment demonstrates that he erroneously reversed the onus and required Asurco to disprove the assertion made by the CFMEU in its application.
Conclusions
[12] We are not satisfied that the decision of the Senior Deputy President involves appealable error. His Honour, with respect, properly identified the statutory test, considered the evidence relevant to that test and made findings of fact arising from that evidence. Properly and fairly construed, His Honour found that the CFMEU was genuinely trying to reach an agreement prior to the employer putting the agreement to a ballot of employees, and after the ballot, nothing occurred to alter that position.
[13] In our view, the decision involves an unexceptional exercise of the Commission’s powers and there is no error in His Honour’s reasoning or determination.
[14] For these reasons we declined to grant permission to appeal and dismissed the application for permission to appeal.
VICE PRESIDENT
Appearances:
Mr S. Richter appeared for Asurco.
Mr P. Boncardo, with Ms L. Dooley, for the CFMEU.
Hearing details:
2015.
Melbourne.
15 October.
Final written submissions:
Asurco on 28 September 2015.
CFMEU on 8 October 2015.
1 [2009] FWAFB 368.
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