B C Meale's Pty Ltd
[2010] FWA 7964
•18 OCTOBER 2010
[2010] FWA 7964 |
|
DECISION |
Fair Work Act 2009
s.320 - Application to vary a transferable instrument - an agreement
B C Meale's Pty Ltd
(AG2010/18175)
Building, metal and civil construction industries | |
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 18 OCTOBER 2010 |
Summary: apprehended bias - recusal - variation of a transferable instrument upon transfer of business - limited scope of power to vary transferable instrument - do “working arrangements” extend to pay rates and allowances? - purposive approach versus ordinary language – tension between s.320(2)(c) and s.320(4)(e) of the Act - preliminary finding.
[1] This is an application under s.320 of the Fair Work Act 2009 (“the Act”). Section 320 of the Act is located in Division 3 of Part 2-8 of the Act and concerns an application to vary a transferable instrument (the applicable enterprise agreement). The terms of s.320 of the Act are set out later in this decision.
[2] In essence, the application seeks to vary the transferable instrument that is to transfer along with the transferring employees upon the transfer of business within the relevant corporate structure. The variation to the transferable instrument that is sought concerns a reduction in the wages and the allowances of the transferring employees.
[3] The issues that give rise to this application were the basis of an earlier application under s.739 of the Act (“the prior application”), with which I dealt. That application was made by Brisbane Concrete Pumping Meale’s Ltd (“BCPM”). The application under s.320 of the Act (“the current application”) was made by B.C. Meale’s Pty Ltd (“BCM”). BCPM and BCM both are corporate entities within the Brisbane Concrete Pumping Group of companies (“BCPG”). The employer is in the business of concrete pumping (both mobile and high rise).
[4] The Construction, Forestry, Mining and Energy Union (“CFMEU”) was the Respondent to the application made under s.739 of the Act and is also a party with an interest in the current application.
[5] The reason for this application to vary the transferable instrument is that it is said that the market conditions in Brisbane have not evolved as forecast and BCPM has found itself a party to an enterprise agreement the rates and allowances for which are proving to be a commercial constraint upon its ability to be competitive within the mobile concrete pumping market. BCPG faces competition from 100 other competitors in the mobile concrete pumping market.
[6] The commercial position of BCPM has been precarious at times, having only come out of receivership in January 2009 by way of new investments from current investors.
[7] Consequently, BCPM now seeks to transfer its business to an associated entity within BCPG (that is, to BCM) and to vary the relevant transferable instrument (the details of which are set out below) to reduce the wages and allowances of those (32 permanent 1) employees covered by the transferable instrument (which commenced operation in December 2009) who fall within classifications relating to the mobile concrete pumping aspects of the employer’s business. It is said that the reduction in pay rates and allowances would still have the effect of ensuring that employees would receive benefits well in excess of the Building and Construction General On-Site Award 2010 and their continuity of service and service-related entitlements would be undisturbed.
[8] The transferable instrument also applies to (nine permanent) employees who are covered by classifications relevant to the high rise concrete pumping business. It is not intended that the variations to the transferable instrument extend to these classifications and these employees, upon transferring to BCM, would continue to be covered by the transferable instrument as if they had remained employees of BCPM.
[9] It is said that “without these changes, the BCPG employees will lose their employment”.
THE RECUSAL APPLICATION
[10] Upon the current application being made, the CFMEU moved that I should not hear the application for reason of the extent of my involvement in the prior application. In that application I had made efforts to facilitate an agreement between the parties as to how to manage the issues that were in question, which involved both private discussions with the parties as well as discussions where both parties were in attendance.
[11] I dismissed the application of apprehended bias at the initial hearing of this matter. My reasons are provided in full the transcript of that proceeding. But in summary, my reasoning was as follows.
[12] Though there is a rich vein of authority on the issue of apprehended bias, the central propositions are captured in the judgment of the High Court of Australia in Re JRL; Ex parte CJL (1986) 66 ALR 239 In this judgment, Mason J stated:
“The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues [...] This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.” 2
And then later:
“[...] disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established” [...] Although it is important that justice be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. .” 3
[13] In the circumstances, I was unable to discern any conduct or comment arising in the context of the prior application that could give rise to a reasonable apprehension of bias in relation to the current application (which had not been agitated at that time). That is, there has been no written or verbal expression on my part to my recollection, or that has been brought to my attention, that would evince a reasonable suspicion on the part of a lay person that the current application would not be approached with an impartial or unprejudiced mind. I have made no comment to either party as the merits of the matter and my role hitherto has been facilitative in nature.
[14] I am familiar, as the CFMEU claims, with the asserted commercial circumstances of the Applicant and have an understanding of its manoeuvring and its intention. But again, this does not predispose me one way or the other in relation to the current application.
[15] I am also familiar to some measure with the disposition of the CFMEU in relation to the employer’s objectives. But there is nothing in that that provides an unusual insight or is of such sensitivity as it might cause me to be predisposed in some way in relation the current application or to the position advances consistently by the CFMEU.
[16] For these reasons, I dismiss the application that I disqualify myself from proceedings in relation to the current application.
[17] This matter aside, I now turn to the current application.
THE SECTION 320 OF THE ACT APPLICATION
[18] In respect of the current application, the CFMEU has asked that I adjourn the proceedings to allow it time to prepare a full evidence case to resist the current application (the terms of which are explored below).
[19] Whilst I appreciate this request, I considered it more prudent to raise a threshold matter in relation to the power vested in Fair Work Australia (“FWA”) to vary a transferable instrument, in the first instance. It would only be upon indicating to the employer and the CFMEU my provisional views in relation to this particular matter that I would burden the parties with the construction of the wider evidentiary tasks associated with contested facts in relation to the array of matters FWA must take into account for the purposes of determining what order if any it might make if it was vested with the power to vary the transferable instrument for the purposes of s.320 of the Act.
[20] I have indicated to the parties, and they appear to have accepted, that I should put my preliminary views on the construction of s.320(2) of the Act (the detail of which is set out below) in writing to the parties and invite them to make further submissions after such times as they have considered my interim perspective. This will give the parties an opportunity to evaluate their positions and better judge what course of action they wish to pursue. I do so in the knowledge that these matters may give rise to significant context and time and resources may not be at the infinite disposal of either side, but particularly the Applicant. The employer can ill-afford to commit resources and time to an exercise that may not be fruitful (especially in the commercial circumstances in which it asserts that it finds itself). Equally, I should not burden the CFMEU with the preparation of a full case when a threshold matter of construction must be addressed as a preliminary.
[21] As a necessary precursor to exploring the construction of s.320(2) of the Act, it is necessary to set out the broad context of the application and then to consider the various preconditions to the exercise of jurisdiction under s.320 of the Act. This is because s.320(1) of the Act, as set out further below, implicitly requires various factual preconditions to be in existence in relation to a transferable instrument covering, or likely to be covering a new employer (as defined) because of a provision of this Part, before such time as the jurisdiction to vary a transferable instrument can be exercised.
[22] Jurisdiction arises under the Part, at least in an elemental sense, from the fact of a transfer of business. In this regard s.310 of the Act reads as follows:
310 Application of this Division
This Division provides for the transfer of rights and obligations under enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from an old employer to a new employer.
[23] In the current circumstances, it is said that there is a transfer of business from an old employer to a new employer as defined at s.311 of the Act, which reads as follows:
311 When does a transfer of business occur
Meanings of transfer of business, old employer, new employer and transferring work
(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
[24] In the current case, it would appear that s.311(1)(d) of the Act is operative in the current circumstances. This is because there is a transfer of the kind contemplated s.311(6) of the Act.
[25] Section 311 of the Act, continues as follows:
Transfer of assets from old employer to new employer
(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.
Old employer outsources work to new employer
(4) There is a connection between the old employer and the new employer if the transferring work is performed by one or more transferring employees, as employees of the new employer, because the old employer, or an associated entity of the old employer, has outsourced the transferring work to the new employer or an associated entity of the new employer.
New employer ceases to outsource work to old employer
(5) There is a connection between the old employer and the new employer if:
(a) the transferring work had been performed by one or more transferring employees, as employees of the old employer, because the new employer, or an associated entity of the new employer, had outsourced the transferring work to the old employer or an associated entity of the old employer; and
(b) the transferring work is performed by those transferring employees, as employees of the new employer, because the new employer, or the associated entity of the new employer, has ceased to outsource the work to the old employer or the associated entity of the old employer.
New employer is associated entity of old employer
(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.
[26] In the current circumstances, the employer has transferred the employees to an associated entity. That is, there is a transfer of business for the purposes of s.312(6) of the Act in so far as it is said that BCPM seeks to transfer its business to BCM.
[27] While that might be able to be established as a fact, is there a transferable instrument that is capable of transferring to the new employer and covering the transferred work to be performed by the transferring employees? Section 312 of the Act reads as follows:
312 Instruments that may transfer
Meaning of transferable instrument
(1) Each of the following is a transferable instrument:
(a) an enterprise agreement that has been approved by FWA;
(b) a workplace determination;
(c) a named employer award.
[28] The transferable instrument is the Brisbane Concrete Pumping Meal’s Pty Ltd CFMEU Collective Agreement 2009-2011, which was certified by FWA in November 2009. The nominal expiry date of the agreement is 31 March 2010.
[29] In such circumstances, the transferable instrument, by virtue of s.313 of the Act, covers the new employer (the associated entity) after the transfer time, as defined, along with the transferring employees performing the transferred work.
[30] Section 313 of the Act reads as follows:
313 Transferring employees and new employer covered by transferable instrument
(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:
(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and
(b) while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work.
(2) To avoid doubt, a transferable instrument that covers the new employer and a transferring employee under paragraph (1)(a) includes any individual flexibility arrangement that had effect as a term of the transferable instrument immediately before the termination of the transferring employee’s employment with the old employer.
(3) This section has effect subject to any FWA order under subsection 318(1).
[31] In my view, for the purposes of the current case, there are likely transferring employees and, prospectively, an old employer that is covered by a likely transferable instrument and who will be covered by the transferable instrument at the time the likely transferring employees become transferred employees of the new employer and perform the transferred work.
[32] Subject to the above findings being properly determined, it would be possible to proceed to consider the application before me under s.320 of the Act. This is because the factual preconditions for the consideration of the variation of a transferable instrument are likely to be capable of being established. Absent those preconditions being established (which, as mentioned above) within the terms of s.320(1) of the Act as set out below, I would not have jurisdiction to consider the application.
[33] Section 320 of the Act reads as follows:
320 Variation of transferable instruments
Application of this section
(1) This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.
Power to vary transferable instrument
(2) FWA may vary the transferable instrument:
(a) to remove terms that FWA is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or
(b) to remove an ambiguity or uncertainty about how a term of the instrument operates if:
(i) the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and
(ii) FWA is satisfied that the variation will remove the ambiguity or uncertainty; or
(c) to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.
Who may apply for a variation
(3) FWA may make the variation only on application by:
(a) a person who is, or is likely to be, covered by the transferable instrument; or
(b) if the application is to vary a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.
Matters that FWA must take into account
(4) In deciding whether to make the variation, FWA must take into account the following:
(a) the views of:
(i) the new employer or a person who is likely to be the new employer; and
(ii) the employees who would be affected by the transferable instrument as varied;
(b) whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;
(c) if the transferable instrument is an enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;
(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;
(f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;
(g) the public interest.
Restriction on when variation may come into operation
(5) A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:
(a) the time when the transferable instrument starts to cover the new employer;
(b) the day on which the variation is made.
[34] Whilst I have found earlier that the preconditions to s.320(1) of the Act are likely to be established, s.320(2) of the Act sets out the scope of the power to vary a transferable instrument.
FWA may vary the transferable instrument:
(a) to remove terms that FWA is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or
(b) to remove an ambiguity or uncertainty about how a term of the instrument operates if:
(i) the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and
(ii) FWA is satisfied that the variation will remove the ambiguity or uncertainty; or
(c) to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.
[35] The power to vary a transferable instrument is limited to the three purposes as set out in s.320(2)(a), s.320(2)(b)(i) and s.320(2)(b)(ii), and s.320(2)(c) of the Act.
[36] An application to vary the transferable instrument must be for any one or more of the above purposes. Does the application before me now meet any one or more of the above purposes?
[37] It is this critical point that I have raised at the initial hearing with the legal representatives for the Applicant. FWA is empowered to vary the transitional instrument for reason that the variation would enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.
[38] My concern is that the scope of meaning of “working arrangements” may not extend to pay rates and allowances.
[39] In summary only, it was put to me on a provisional basis that I should:
- read “working arrangements” broadly and not adopt too narrow a meaning;
- consider a purposive approach to the import of s.320(2)(c) of the Act in the context of the objects of the Part (and as stipulated at s.309 of the Act which is set out immediately below), which envisage the machinery provisions of the Part to be a means of balancing the protection of employees’ “terms and conditions of employment under enterprise agreements” with the operational and commercial interest of employers;
- construe the notion of “working arrangements” as a synonym of sorts for “terms and conditions of employment” as referred to in s.309 of the Act;
- not endorse a reading of the Part that would require an old or new employer to seek to exclude the operation of a transferable instrument in totality under s.318 in preference to a variation by way of s.320 of the Act; and
- while the National Employment Standards refer to “working arrangements” in the context of flexible working arrangements, this is for a particular purpose and should not be confused with the broad purpose of the application now before me (and which is set out at s.309 of the Act).
[40] The objects of the Part are set out at s.309 of the Act and read as follows:
309 Object of this Part
The object of this Part is to provide a balance between:
(a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and
(b) the interests of employers in running their enterprises efficiently;
if there is a transfer of business from one employer to another employer.
[41] Reasonable minds might differ as to whether the objects of a Part (or indeed to an Act) are fully realised within the particulars of the provisions therein.
[42] As a matter of construction I am not confident that the “working arrangements” referred to at s.320(2)(c) of the Act should be read otherwise than on its ordinary meaning. The notion of working arrangements seems ordinarily to imply such matters as the hours or days of operation, the spread of ordinary hours, rosters and shift patterns, the hour at which work commences, crib break structures and so forth. It does not appear to me that the notion of working arrangements extends to pay rates and allowances.
[43] That is, such matters as I have set out immediately above might reasonably fall within the scope of “working arrangements” for which an old or new employer might seek a variation so that they are better aligned to the operation of the new employer’s business.
[44] It seems to me that I am being asked to construe the meaning of “working arrangements” to have a meaning beyond what might be the ordinary usage suggested by s.320(2)(c) of the Act. That is, s.320(2)(c) of the Act does not appear to me, at first blush, to mean, in effect, that a transferable instrument may have its pay rates and allowances varied so that they are better aligned with the commercial environment in which the new employer’s enterprise. The language of the sub section does not tend towards such a broader meaning.
[45] The Supplementary Explanatory Memorandum reads relevantly in part as follows:
“Item 3 – Clause 320
148. This item amends subclause 320(2) to insert an additional ground on which FWA may vary a transferable instrument. This item permits FWA to vary a transferable instrument to enable it to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.
Illustrative example
Wood Weather Systems Pty Ltd (Wood) acquires the business of Fahrenheit Co and offers employment to employees of Fahrenheit Co. These employees were covered by the Fahrenheit Co Enterprise Agreement (Agreement). The Agreement provides that employees’ ordinary hours are 37½ hours each week. Wood’s existing employees all work ordinary hours of 38 hours each week. Wood applies to FWA to vary the term of the Agreement dealing with ordinary hours so that the transferring employees can work ordinary hours of 38 hours a week, to enable them to be better integrated into Wood’s business. Wood also proposes that the pay rates under the Agreement be adjusted to reflect the slightly longer working week. FWA agrees to the proposed variations because it better aligns the terms of the Agreement to the working arrangements in place at Wood.”
[46] In all, the Supplementary Explanatory Memorandum does not helpfully further the issue of construction that is here under discussion. The illustrative example appears to support a narrow reading of s.320(2)(c) of the Act though it may be said not be exhaustive of the circumstances that might be relevant.
[47] In such circumstances, the Applicant’s legal representative would invoke a purposive reading of the section. But here I note that two recent Full Benches of FWA have cautioned against constructing the Act by reference to concepts or synonyms or parliamentary materials and have recommended reliance upon the words themselves the legislature has chosen. 4
[48] It appears to me, at least as an initial perspective on the construction of s.320(2)(c) of the Act, that if it had been intended that an agreement could be varied for purposes of varying its pay rates and allowances, then the language adopted by the parliament would have conveyed that plain meaning.
[49] This is my preliminary view of the construction of s.320(2)(c) of the Act.
[50] I am not adopting it as a final position.
[51] One good reason for not adopting the above construction as a final position is that there is some tension between s.320(2)(c) of the Act and s.320(4)(e) of the Act which may bear on issues of construction. I note this issue, which I will explore below, has not been put to me at this point and I have not heard the employer or the CFMEU in relation to it.
[52] Section 320(4) of the Act reads as follows:
Matters that FWA must take into account
(4) In deciding whether to make the variation, FWA must take into account the following:
(a) the views of:
(i) the new employer or a person who is likely to be the new employer; and
(ii) the employees who would be affected by the transferable instrument as varied;
(b) whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;
(c) if the transferable instrument is an enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;
(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;
(f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;
(g) the public interest. (My emphasis)
[53] Item 149 of the Supplementary Explanatory Memorandum refers to s.320(4)(e) of the Act, amongst other sub sections as newly introduced in s.320(4) of the Act (in respect of the Fair Work Bill 2008), and reads as follows:
Item 4 – Clause 320
149. This item amends clause 320 to include additional matters that FWA must take into account when deciding whether to make a variation under subclause 320(1). This is intended to ensure that FWA has regard to the new employer’s financial position, the efficient operation of the new employer’s enterprise and the degree of fit between any transferable instrument and arrangements that already exist in the new employer’s enterprise. (My emphasis)
[54] The purpose of s.320(4)(e) of the Act is to ensure that FWA takes into account when varying a transferable instrument the employer’s financial position.
[55] If the above construction of s.320(2)(c) of Act that I have provisionally adopted is correct, then the scope of meaning of s.320(4)(e) of the Act can only extend to considering the new employer’s financial position for the restricted purposes as discussed. That is, when considering whether an application to vary working arrangements (as defined as hours, rosters, shifts etc) was appropriate, FWA would take into account the financial position of the employer.
[56] It is not immediately evident why an employer’s financial position generally might be germane to whether a transitional instrument should be varied in relation to operational matters such as hours of work etc. Should a business be denied the benefit of a closer operational fit between its operations and a transferable instrument because of or for reasons that include that is profitable, or more profitable than another business?
[57] Further, it would appear that s.320(4)(d) of the Act and s.320(4)(f) of the Act capture the sorts of concerns that fall within the meaning of “working arrangements” for the purpose of s.320(2)(c) of the Act as discussed above. That is, s.320(4)(d) of the Act and s.320(4)(f) of the Act appear to do all the work necessary to address the scope of meaning of s.320(2)(c) of the Act in their own right without further assistance from s.320(4)(e) of the Act – unless s.320(2)(c) of the Act should have a wider meaning (inclusive of the operational arrangements I have considered). .
[58] Because of the wider statutory context provided by s.320(4)(e) of the Act, therefore, arguably more may have been intended as to the scope of meaning of “working arrangements” in s.320(2)(c) of the Act than discussed above.
[59] It was put to me if the interpretation of s.320(2)(c) of the Act provisionally proffered above is correct (and that the reference to “working arrangements” does not connote pay rates and allowances) , then this would leave the old or new employer with no avenue to seek relief against uncommercial elements of a transferable instrument other than by s.318 of the Act.
[60] There is little purpose in divining the policy intent of the Part. Though I would make a number of observations:
- An application s.318 of the Act would require FWA to seek the views of all employees covered by the transferable instrument and not just those who are the affected employees as in this application under s.320 of Act;
- An enterprise agreement which is a likely transferable instrument may be varied upon application under Division 7 of Part 2-4 of the Act, and such an application may extend to rates or pay and allowances;
- It would appear that there is no obstacle immediately evident to a transferable instrument which is an enterprise agreement as being capable of being varied under Division 7 of Part 2-4 of the Act upon application by a new employer (which is covered by that agreement as a consequence of the transfer of business); and
- An enterprise agreement may be terminated under Subdivision C of Division 7 Part 2-4 of the Act
[61] I have set about this provisional or tentative exploration of s.320 of the Act to assist the parties in what is said to be a matter of great consequence to the Applicant and the employees concerned. It has been put to me that without the variation as sought, then the BCPG will cease to operate and the employees’ positions will be lost.
[62] If the employer remains committed to seeking its objective in the time it has available through an application under s.320 of the Act, then it will need to address the kinds of issues I have raised above. The matter will be relisted upon further application (whereupon directions will issue).
SENIOR DEPUTY PRESIDENT
Appearances:
Mr S. Dewberry of Freehills for the Applicant
Mr T. Roberts of the Construction, Forestry, Mining and Energy Union
Hearing details:
2010.
Brisbane.
October 15.
1 BCPM also appears to engage ten casual employees who perform duties in relation to the mobile concrete pumping aspect of its business.
2 Re JRL; Ex parte CJL (1986) 66 ALR 239 at 245
3 Re JRL; Ex parte CJL (1986) 66 ALR 239 at 246
4 In Appeals by National Retail Association Ltd and Master Grocers Australia Ltd against decision of Watson VP of 9 July 2010 [[2010] FWA 5068] – Re: General Retail Industry Award 2010 [2010] FWAFB 7838 (8 October 2010), which concerned a consideration of s.157 of the Act, the Full Bench stated:
[23] In our view synonyms such as exceptional, indispensable and requisite and the compound phrase “exceptional circumstances” are of limited value and their use is likely to lead to confusion. While synonyms might in some circumstances assist in the construction of statutes, they ought not to be substituted for the words that the legislature has used.
In Construction, Forestry, Mining and Energy Union v Tahmoor Coal P/L[2010] FWAFB 3510 (5 May 2010), the Full Bench which considered s.228 of the Act, stated:
[24] Whether a party observes or fails to observe the good faith bargaining requirements set out in s.288(1) is to be determined in light of all of the relevant circumstances. While at one level this is stating the obvious, it is appropriate in view of the submissions in the appeal to indicate that the question will rarely be decided by reference to one action or series of actions. Equally it would be undesirable to read into the legislation concepts which do not already appear in it for the purpose of explaining its operation. That approach is likely to lead to error in the construction and application of the provisions.
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