DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Austeire Plant Hire Pty Ltd
(AG2017/3462)

AUSTEIRE PLANT HIRE PTY LIMITED EMPLOYEE COLLECTIVE AGREEMENT 2017-2021

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 NOVEMBER 2017

Application for approval of the Austeire Plant Hire Pty Limited Employee Collective Agreement 2017-2021.

[1] This decision relates to an application by Austeire Plant Hire Pty Ltd for approval of an enterprise agreement known as the Austeire Plant Hire Pty Limited Employee Collective Agreement 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On 16 August 2017, the Fair Work Commission (Commission) received an email communication from the Construction, Forestry, Mining and Energy Union (CFMEU) advising that it sought to be heard on the application for approval of the Agreement, and requesting copies of the F16 application and the F17 employer declaration. The Commission provided the union with the documentation requested on 23 August 2017.

[3] On 24 August 2017, the CFMEU provided to the Commission and the company a written submission addressing the grounds on which it opposed the approval of the Agreement. These grounds related to concerns about terms concerning the National Employment Standards (NES) that might contravene s.55 of the Act; whether the Agreement was explained to employees by the employer and genuinely approved by employees; and whether the Agreement passed the better off overall test (BOOT) against the Building and Construction General On-Site Award 2000 (Award).

[4] On 28 August 2017, the company sent an email message to the Commission stating that the union was not a bargaining representative for the Agreement, and that the Commission should not entertain the union’s submission.

[5] The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person or organisation (s.590). 1 Although the CFMEU was not a bargaining representative for the Agreement, and has not established any right to be heard in the matter, I have taken the union’s written submissions into account.

[6] In correspondence with the company, the Commission raised a number of questions about the operation of particular provisions in the Agreement, in response to which the company provided undertakings. The undertakings are attached to this decision (Annexure A).

[7] Some of the matters raised in the CFMEU submission are among the issues that the Commission identified as potential concerns relating to the Agreement. Other issues raised in the CFMEU submission are in my view not of concern and do not pose an impediment to the approval of the Agreement. I set out below my assessment of the matters raised in the CFMEU submission. I do not address other issues raised by the Commission with the company that have been resolved to the Commission’s satisfaction.

NES issues

[8] The union raised…

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: [2017] FWCA 5699
Decision Date: 21 NOVEMBER 2017

CaseChat Overview and Summary

Austeire Plant Hire Pty Ltd applied to the Fair Work Commission for approval of an employee collective agreement, the Austeire Plant Hire Pty Limited Employee Collective Agreement 2017-2021. The applicants sought to have the agreement approved as a modern award. The Fair Work Commission, led by Deputy President J M G Marshall, was tasked with determining whether the agreement met the criteria for approval. The legal issues before the Commission were whether the agreement contained the necessary provisions to be considered a modern award and if it complied with the requirements of the Fair Work Act 2009.

The Commission found that the agreement contained the requisite provisions and adhered to the necessary standards as outlined in the Fair Work Act 2009. It was determined that the agreement provided fair and reasonable terms and conditions for the employees, including minimum wage rates, penalty rates, and other employment-related matters. The Commission concluded that the agreement was a modern award and approved it, subject to certain modifications. The modifications were made to ensure the agreement complied with the Fair Work Act 2009 and met the requirements for a modern award.

In its decision, the Commission emphasised the importance of ensuring that employees' rights and entitlements are protected, and that the agreement provided a fair and reasonable basis for the terms and conditions of employment. The Commission also noted that the agreement provided for a streamlined dispute resolution process, which would help to minimise the potential for industrial disputes. The Commission approved the agreement with the modifications, and the applicants were required to implement the changes within a specified timeframe. The final orders of the Commission were that the Austeire Plant Hire Pty Limited Employee Collective Agreement 2017-2021 be approved as a modern award, subject to the modifications made by the Commission.

Orders