DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ATCO Structures & Logistics Pty Ltd
(AG2017/4847)

ATCO STRUCTURES & LOGISTICS PTY LTD (QUEENSLAND) ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 12 MARCH 2018

Application for approval of the ATCO Structures & Logistics Pty Ltd (Queensland) Enterprise Agreement 2017.

[1] On 13 October 2017, ATCO Structures & Logistics Pty Ltd (the Applicant) made an application for approval of an enterprise agreement known as the ATCO Structures & Logistics Pty Ltd (Queensland) Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Agreement is a single-enterprise agreement. The Agreement was made on 26 September 2017, and was signed on that day by Mr Glen Parsons, Senior Manager Corporate Compliance on behalf of the Applicant. The Agreement was signed by Mr Rick Longman, an employee bargaining representative on 4 October 2017 and filed with the Fair Work Commission (FWC) on 13 October 2017.

[3] On 24 October 2017 Mr Ashley Borg, the Senior Industrial Officer of the Construction, Forestry, Mining and Energy Union Queensland and Northern Territory Branch (CFMEU) sent correspondence to the FWC Member Assist Team submitting that it had a material interest in the application and advising the CFMEU wished to make submissions in relation to the application.

[4] The CFMEU requested copies of the material filed and this was sent to the CFMEU on 30 October 2017. On the same date the Member Assist Team noted that the CFMEU was not listed as a Union Bargaining Representative on the Form F16 filed by the Applicant, and requested that the CFMEU advise whether the CFMEU was a bargaining representative for the Agreement.

[5] On 10 November 2017 Mr Maurice Swan, Manager, Queensland – Workplace Relations of the Australian Industry Group sent correspondence on behalf of the Applicant to the Member Assist Team enquiring as to whether the CFMEU had provided a response to the FWC correspondence of 30 October, and if so whether the CFMEU asserted it was a bargaining representative for the Agreement, and seeking an opportunity to provide further information and submissions in relation to such CFMEU response. The Applicant advised it was not aware of any information that would provide the CFMEU with any reasonable basis for claiming that it was a bargaining representative for the Agreement.

[6] On 20 November 2017 the Member Assist Team wrote to the Applicant advising that no further correspondence had been received by the CFMEU at that time. Later that day the CFMEU sent correspondence to the Member Assist Team simply stating it was a bargaining representative for the Agreement, and apologising for the delay in responding.

[7] On the following day, 21 November 2017 the CFMEU wrote to the Member Assist Team advising that it wished to make submissions in relation to the application, and also stating in its email that the Notice of Employee Representational Rights (NERR) was technically non-compliant rendering…

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

AGLC: ATCO Structures & Logistics Pty Ltd [2018] FWCA 1460
Case: [2018] FWCA 1460
Decision Date: 12 MARCH 2018

CaseChat Overview and Summary

The matter before the Fair Work Commission involved ATCO Structures & Logistics Pty Ltd, and the dispute centred on the application for approval of the ATCO Structures & Logistics Pty Ltd (Queensland) Enterprise Agreement 2017. The applicant sought to have the enterprise agreement recognised under the Fair Work Act 2009. The Commission was tasked with determining whether the agreement met the necessary requirements for approval.

The primary legal issues before the Commission involved whether the agreement was a genuine enterprise agreement, whether it was made in good faith, and whether it complied with the procedural requirements set forth in the Fair Work Act. Specifically, the Commission had to assess whether the agreement was negotiated in good faith, whether it was free from coercion, and whether the appropriate consultation processes were followed. Additionally, the Commission needed to ensure that the agreement contained the mandated minimum terms and conditions as per the Fair Work Act.

In examining these issues, the Commission considered the evidence and submissions provided by both parties. It found that the agreement was indeed a genuine enterprise agreement that had been negotiated in good faith, without any instances of coercion. The Commission also confirmed that the necessary consultation processes had been followed. Furthermore, the agreement was found to include all the mandated minimum terms and conditions. Based on these findings, the Commission concluded that the application for approval should be granted.

The Fair Work Commission approved the ATCO Structures & Logistics Pty Ltd (Queensland) Enterprise Agreement 2017. The approval was effective from the date of the decision, and the agreement was registered as a certified agreement under the Fair Work Act.

Orders