Australian Workers' Union v Moag Pty Ltd - [2024] FWCFB 259

[2024] FWCFB 259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Australian Workers' Union
v

Moag Pty Ltd

(C2024/1323)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER LEE

MELBOURNE, 15 MAY 2024

Appeal against decision [2023] FWCA 65 of Deputy President Dobson at Brisbane on 9 January 2023 in matter number AG2022/5280

The Australian Workers’ Union (AWU or union) has lodged an appeal, for which permission is required, from a decision of Deputy President Dobson on 9 January 2023 to approve an enterprise agreement known as the MOAG Enterprise Agreement 2022 (Agreement) under s 185 of the Fair Work Act 2009 (Act). The AWU contends that it is a person aggrieved for the purposes of s 604 and has standing to appeal the decision because it has members who are now employed by the respondent, Moag Pty Ltd (Moag or company), under the Agreement. It submits that permission to appeal should be granted in the public interest or otherwise and that the decision should be quashed. Its primary contentions are that the Deputy President erred in concluding that the Agreement passed the ‘better off overall test’ (BOOT) because she failed to apply the test against all of the relevant awards, and because the Agreement was not genuinely agreed to by employees. Pursuant to the Fair Work Commission Rules 2024, an appeal under s 604 must be brought within 21 days after the date of the decision that is appealed. The AWU submits that the Commission should extend time and seeks to adduce fresh evidence in the appeal in the form of a witness statement of its organiser, Ross Kumeroa.

The background to this matter can be briefly summarised as follows. Moag is an entity within the Monadelphous group which provides maintenance contracting services. In October 2022, it issued a notice of employee representational rights (NERR) to employees in respect of a proposed enterprise agreement. Between October and December 2022, Moag met with the relevant employees and provided them with documents which compared the proposed agreement with the existing enterprise agreement, the MOAG Enterprise Agreement 2017 (2017 Agreement), and with the Building and Construction General On-site Award 2020 (Building Award). No unions were involved in bargaining for the Agreement. Moag’s F17 declaration in support of its application under s 185 stated that on 13 December 2022, the four employees covered by the Agreement voted in favour of approving the Agreement. An application for approval of the Agreement was made on 15 December 2022 and on 9 January 2023 the Deputy President approved the Agreement subject to undertakings. The AWU did not become aware of the Agreement until mid-February 2024, at which time it obtained the approval materials from the Commission’s file. The appeal was filed shortly thereafter, on 4 March 2024.

We are satisfied that the AWU is a person aggrieved for the purpose of s 604 on the basis that it has members who are employed under the terms of the Agreement whose interests are…

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.

Continue reading Australian Workers' Union v Moag Pty Ltd

Details

AGLC: Australian Workers' Union v Moag Pty Ltd [2024] FWCFB 259
Case: [2024] FWCFB 259
Decision Date: 15 MAY 2024

CaseChat Overview and Summary

The Australian Workers' Union (AWU) appealed the approval of the MOAG Enterprise Agreement 2022 (Agreement) by Deputy President Dobson, arguing it did not meet the 'better off overall test' (BOOT) and was not genuinely agreed to by employees. The AWU contended that the Deputy President erred in applying the BOOT and that the agreement was not genuinely agreed to by employees. The appeal was filed outside the 21-day statutory period, and the AWU sought an extension of time and permission to adduce fresh evidence.

The Fair Work Commission ruled that the AWU was a person aggrieved and had standing to appeal but declined to grant an extension of time. The Commission found that while the Electrical, Electronic and Communications Contracting Award 2020 (Electrical Award), and the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award) were relevant for BOOT purposes, this error was inconsequential because employees were better off under the Agreement. The Commission also rejected the AWU’s argument that the agreement was not genuinely agreed to by employees, finding that the small voting cohort was representative and had a stake in the agreement. The appeal was dismissed, and permission to appeal was refused.

Orders