“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Kaefer Integrated Services Pty Ltd
[2015] FWCFB 2351
•2 APRIL 2015
| [2015] FWCFB 2351 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
KAEFER Integrated Services Pty Ltd
(C2015/394)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | SYDNEY, 2 APRIL 2015 |
Appeal against decision [2014]FWCA 8530 of Deputy Gostencnik at Melbourne on 27 November 2014 in matter number AG2014/7142 - whether Agreement was made in accordance with ss.181 and 182 of the Fair Work Act 2009 - consent position of the parties - permission to appeal granted - decision quashed - application for approval dismissed .
[1] On 27 November 2014, Deputy President Gostencnik issued a decision 1 approving the KAEFER Integrated Services Operations Enterprise Agreement 2014-2018 (the Agreement).
[2] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged an appeal against that decision on 25 February 2015 on the basis that the Agreement should not have been approved because it was not made in accordance with ss.181 and 182 of the Fair Work Act 2009 (the Act).
[3] On 12 March 2015, the parties advised the Full Bench that they consented to orders being made in the appeal which would quash the decision to approve the Agreement and dismiss the application for approval.
[4] The basis for the consent position between the parties was set out in an Agreed Statement of Facts as follows:
“1. On 15 August 2014, 14 enterprise agreements covered Kaefer and its employees.
2. The Kaefer Integrated Services Operations Enterprise Agreement 2014-2018 (the Proposed Agreement) does not cover employees engaged to work on sites where Kaefer already has in place an enterprise agreement specific to the site (Site Agreement): clause 3(c).
3. On 15 August 2014, Kaefer employed eleven employees who were covered by the terms of the Proposed Agreement.
4. On or around 15 August 2014, Kaefer included only four employees in the voting process for the Proposed Agreement. Seven employees who were covered by the Proposed Agreement were not given the opportunity to vote. Those seven employees worked at a different site from the employees who were given the opportunity to vote.
5. The reason that those seven employees were not given the opportunity to vote for the Proposed Agreement was because Kaefer inadvertently overlooked the fact that those employees were not already covered by one of its 14 operating Site Agreements.
6. The employees who were not given the opportunity to vote were not provided with a copy of the Proposed Agreement, and did not have the terms of the Proposed Agreement explained to them.
7. The Proposed Agreement was not made between Kaefer and all its employees who were going to be covered by that Proposed Agreement.”
[5] Given the agreed position of the parties and the matters referred to above, we have decided to grant an extension of time for the lodgement of the appeal. We are also satisfied that it is in the public interest that permission to appeal should be granted in the matter, that the decision to approve the Agreement be quashed and that the application for approval be dismissed. We will make orders to this effect.
SENIOR DEPUTY PRESIDENT
1 2014 FWCA 8530.
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