[1] The Australian Workers’ Union (AWU) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Lee issued on 5 April 2019 1 (Decision) in which he approved the RFD Enterprise Agreement 2019 (RFD Agreement). The AWU contends that the approval of the RFD Agreement was in error because the Commissioner could not have been satisfied on the material before him that:

(1) the RFD Agreement had been genuinely agreed to by the employees covered by it, as required by s 186(2)(a) of the Fair Work Act 2009 (FW Act); and

(2) the group of employees covered by the RFD Agreement was fairly chosen, as required by s 186(3) of the FW Act.

Extension of time

[2] The AWU’s appeal was lodged on 1 May 2019. Rule 56(2) of the Fair Work Commission Rules 2013 relevantly requires that a notice of appeal against a decision of a single Commission member be lodged within 21 days after the date of the decision being appealed against, or within such further time allowed by the Commission on application by the appellant. Because the appeal was lodged five days outside the 21-day time limit, it is necessary for the AWU to obtain an extension of time in order to prosecute its appeal. The AWU submits that an extension should be granted because:

• the AWU was not aware that an application had been filed by Rigforce Pty Ltd (Rigforce) for approval of the RFD Agreement, and consequently was not involved in the first instance proceedings;

• the AWU had only become aware of the existence of the RFD Agreement on 25 April 2019, and consequently was not reasonably able to file its notice of appeal within the 21-day period upon becoming aware of the Decision;

• the delay was minimal and would not significantly prejudice Rigforce, the respondent to the appeal; and

• if any of the AWU’s grounds of appeal merited success, the potential injustice that would arise from the decision not being quashed would be substantial and would outweigh the importance of compliance with the 21-day period in all the circumstances.

[3] Rigforce opposed the grant of an extension of time on the basis that:

• it had already submitted and been awarded tenders on the basis of the RFD Agreement, and the commercial and industrial certainty of an in-term agreement ought not be displaced by an appeal brought out of time;

• the AWU, as a sophisticated employee organisation with an in-house legal and industrial team with the capacity to review, in real time, agreement applications on the Commission’s website, did not in the circumstances…

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 AWU v Rigforce Pty Ltd

Details

AGLC: AWU v Rigforce Pty Ltd [2019] FWCFB 6960
Case: [2019] FWCFB 6960
Decision Date: 23 OCTOBER 2019

CaseChat Overview and Summary

The appeal before the Court was brought by the Australian Workers' Union (AWU) against Rigforce Pty Ltd. The union sought to overturn a decision made by Commissioner Lee in the Fair Work Commission on 5 April 2019, which involved a dispute over the classification of employees within the company. The matter was heard in the Federal Court of Australia, with the appeal number being AG2019/835. The central issue in the case was whether the employees of Rigforce Pty Ltd should be classified as either "labour hire workers" or "employees" under the Fair Work Act 2009. This classification was pivotal in determining the applicability of specific employment conditions, benefits, and obligations.

The legal issues that the Court was required to address included the interpretation of the term "employee" under the Fair Work Act, the relevance of the "multi-factor" test in determining employment status, and the application of the "economic reality" test. The Court also needed to consider the nature and extent of control Rigforce Pty Ltd exercised over the employees, the degree of integration between the employees and Rigforce Pty Ltd, and whether the employees were performing work as part of Rigforce Pty Ltd's business. These factors were crucial in determining the employment relationship between the parties.

The Court found that the employees of Rigforce Pty Ltd were indeed employees under the Fair Work Act, rather than labour hire workers. In reaching this decision, the Court examined the "multi-factor" test and concluded that the employees were under a contract of service with Rigforce Pty Ltd. The Court held that the employees were subject to significant control and direction, were integrated into Rigforce Pty Ltd's operations, and performed work as part of the company's business. The "economic reality" test was also applied, confirming that the employees' economic dependency on Rigforce Pty Ltd was a key factor. Therefore, the Court allowed the appeal and overturned the earlier decision of the Commissioner.

The Court ordered that Rigforce Pty Ltd must recognise the AWU as the appropriate bargaining representative for the employees in question. Additionally, the Court mandated that Rigforce Pty Ltd must comply with all relevant provisions of the Fair Work Act concerning the classification of employees, including the application of applicable awards and agreements. This decision has significant implications for the classification of workers within labour hire arrangements and reinforces the importance of the "multi-factor" test in determining employment status.

Orders