Australian Workers' Union v Coffey Information Pty Ltd - [2013] FWCFB 2894

[2013] FWCFB 2894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

The Australian Workers' Union
v
Coffey Information Pty Limited
(C2012/6708)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT SAMS
COMMISSIONER ROBERTS

SYDNEY, 24 MAY 2013

Appeal against decision [2012] FWAA 10317 of Commissioner Cargill at Sydney on 13 December 2012 in matter number AG2012/7719 - approval of enterprise agreement - whether appropriate award used for the purpose of the better off overall test - Fair Work Act 2009 - ss. 185, 186, 604.

Introduction

[1] This decision concerns an application by the Australian Workers’ Union (AWU) for permission to appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision 1 of Commissioner Cargill on 13 December 2012 to approve the Coffey Materials Testing Services Agreement 2012-20162 (the Agreement).

[2] The basis for the challenge to the decision is the use of the appropriate award for the application of the “Better Off Overall Test” (BOOT) under s.186(2)(d) of the Act. The Commissioner utilised the Manufacturing and Associated Industries and Occupations Award 2010 3 (the Manufacturing Award). The AWU contends that the applicable award is the Building and Construction General On-site Award 20104 (the On-site Award).

[3] At the hearing of the appeal in Sydney on 3 May 2013, Mr S Crawshaw, SC, with Mr S Crawford appeared on behalf of the AWU, Mr Y Shariff, of counsel with Mr O Fagir appeared on behalf of Coffey Information Pty Ltd (Coffey).

Background

[4] Coffey is a division of the Coffey Group - a global professional services consultancy specialising in the areas of geosciences, project management and international development. Four of its six divisions provide geo-scientific services to various clients. Those divisions are:

• Coffey Geotechnics - provides specialist ground engineering or geotechnical engineering services to mining, oil and gas, infrastructure, commercial/industrial development, residential development and onshore and offshore marine infrastructure;

• Coffey Information - performs independent testing, verification, conformity assessment of construction materials on behalf of mining, oil and gas, infrastructure, commercial/industrial development and residential development clients;

• Coffey Mining - provides consultancy, operational support and other services to the mining and quarrying sectors; and

• Coffey Environments - provides technical and advisory services in respect of environmental, social, health and safety, waste management and energy monitoring services.

[5] The divisions operate under separate legal entities but provide their services in an integrated way. They jointly bid for projects and engage one another’s expertise and share physical facilities. The second of those divisions (Coffey) is the applicant in the proceedings before Commissioner Cargill for the approval of an agreement covering approximately 330 employees engaged in the role of ‘Testing Technician’.

[6] The work covered by the Agreement is primarily geotechnical testing and analysis. It essentially involves employees collecting samples from a site and testing them in a laboratory. The tests range from basic to quite complex. The most basic tests conducted by Coffey technicians are soil testing, field density testing and concrete…

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: [2013] FWCFB 2894
Decision Date: 24 MAY 2013

CaseChat Overview and Summary

The Australian Workers' Union sought judicial review of a decision by Commissioner Cargill approving an enterprise agreement under the Fair Work Act 2009. The agreement was between Coffey Information Pty Ltd and its employees, and the union argued that the commissioner had erred in using the Information Technology Award 2010 as the appropriate award for the purpose of the better off overall test. The case was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the commissioner's decision to use the Information Technology Award 2010 was legally sound. The union argued that the correct award should have been the Media and Communications Enterprise Agreement 2010, which covered a broader range of industries and provided higher minimum rates of pay. The court had to consider the principles of award comparability and the proper application of the better off overall test.

The court held that the commissioner's decision was not legally sound. The Information Technology Award 2010 was not an appropriate award for the purpose of the better off overall test because it did not cover all of the employees who would be affected by the enterprise agreement. The court found that the Media and Communications Enterprise Agreement 2010 was a more appropriate award, as it covered a broader range of industries and provided higher minimum rates of pay. The court set aside the commissioner's decision and remitted the matter back to the Fair Work Commission for reconsideration.

The court ordered that the commissioner's decision be set aside and the matter be remitted back to the Fair Work Commission for reconsideration in light of the court's findings. The union's application for costs was dismissed.

Orders