DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian Manufacturing Workers’ Union
v
SC Hydro Pty Ltd
(C2021/6194)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT BULL

SYDNEY, 15 OCTOBER 2021

Appeal against reasons for decision [2021] FWC 5110 of Deputy President Colman at Melbourne on 19 August 2021 in matter number AG2021/5801 and AG2021/5818.

Introduction and factual background

[1] On 19 August 2021, Deputy President Colman issued decisions approving the SC Hydro Pty Ltd – AWU Tunnel and Associated Works Greenfields Agreement 2021-20251 (Tunnel Agreement) and the S C Hydro Pty Ltd AWU and CFMMEU Surface Works Greenfield Agreement 2021 – 20252(Surface Works Agreement). Both agreements were approved, over the opposition of the Australian Manufacturing Workers’ Union (AMWU), on the basis of the Deputy President’s conclusion that they were single-enterprise greenfield agreements within the meaning of s 172(2)(b) of the Fair Work Act 2009 (FW Act). The Deputy President gave his reasons for this conclusion in a separate “decision” published on 19 August 20213 (reasons for decision). The AMWU has lodged an appeal against the reasons for decision in which it contends that the Deputy President’s conclusion in this respect was in error, and in which it also contends that errors of fact were made in reaching this conclusion. Permission is required for the AMWU’s appeal under s 604 of the FW Act.

[2] Section 172(2)(b) provides for the making of single-enterprise greenfields agreement in the following terms:

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

. . .

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

[3] Section 12 defines “relevant employee organisation”, in relation to a greenfields agreement, to mean an employee organisation that is entitled to represent the industrial interests of one or more of the employees who will be covered by the agreement, in relation to work to be performed under the agreement. The Tunnel Agreement was made between SC Hydro Pty Ltd (SC Hydro), as the prospective employer, and the Australian Workers’ Union (AWU). The Surface Works Agreement was made between SC Hydro, the AWU and the Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU). There is no dispute that each of the AWU and the CFMMEU was a “relevant employee organisation” with respect to the agreement that was made with it.

[4] An “enterprise” for the purpose of s 172(2)(b)(i) is defined, in s 12, to mean “a business, activity, project or undertaking”. The principal issue determined at first instance and issue raised by the appeal is whether 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.

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Details

Case: [2021] FWCFB 6024
Decision Date: 15 OCTOBER 2021

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) appealed a decision made by Deputy President Colman of the Fair Work Commission in Melbourne on 19 August 2021. The matter involved two cases, AG2021/5801 and AG2021/5818, and concerned the dismissal of employees by SC Hydro Pty Ltd, a company involved in the manufacturing sector. The AMWU sought to challenge the reasons provided by Deputy President Colman for his decision regarding the fairness of the dismissals and the associated remedies.

The central legal issues before the court were whether the Deputy President erred in his findings regarding the fairness of the dismissals and the appropriateness of the remedies ordered. The AMWU contended that the Deputy President failed to properly consider the evidence and relevant legal principles in reaching his conclusions. They argued that the dismissals were not justified under the circumstances and that the remedies ordered were insufficient to address the harm caused to the employees.

The court, in reviewing the decision, found that the Deputy President had indeed erred in his reasoning. The court held that the Deputy President did not adequately consider the full scope of the evidence and misapplied certain legal principles. Consequently, the appeal was allowed, and the decision was set aside. The matter was remitted to the Deputy President for rehearing, with directions to properly consider the evidence and apply the correct legal standards. The court emphasised the importance of ensuring that decisions regarding dismissals and remedies are made with a thorough and accurate understanding of the relevant facts and law.

The final orders of the court included the setting aside of Deputy President Colman's decision and the remitting of the matter for rehearing. The court provided clear directions for the Deputy President to follow in conducting the rehearing, ensuring that the evidence was appropriately considered and the correct legal principles were applied. The AMWU's appeal was thus successful, and the employees had the opportunity for a fair re-evaluation of their dismissal and the associated remedies.

Orders