Bilfinger Berger Services (Australia) Pty Ltd - [2010] FWA 6355

[2010] FWA 6355

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bilfinger Berger Services (Australia) Pty Ltd
(AG2010/1971)

COMMISSIONER RYAN

MELBOURNE, 18 AUGUST 2010

Bilfinger Berger Services Australia Pty Ltd Altona Workshop Agreement 2009.

[1] On 17 August 2010 I issued a decision in relation to an application for approval of the Bilfinger Berger Services (Australia)) Pty Ltd Altona Workshop Agreement 2009 [2010] FWAA 6325 [PR500684].

[2] I now revoke that Decision.

[3] Section 603(3)(b) of the Fair Work Act 2009 (the Act) provides:

“(3) FWA must not vary or revoke any of the following decisions of FWA under this section:

(b) . . . a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);”

[4] It is beyond doubt that the Act prohibits the revocation of a decision which is a decision made under Division 4 of Part 2-4 of the Act. The issue in this matter is whether or not the decision I issued on 17 August 2010 is a decision under Division 4 of Part 2-4 of the Act.

[5] A decision under Division 4 of Part 2-4 of the Act is a decision to either approve or not approve an application for approval of an enterprise agreement. Section 186(1) provides that:

“If an application for approval of an enterprise agreement is made under s.185, FWA must approve the agreement under this section if the requirements set out in this section and s.187 are met.”

[6] Critically the process leading to the making of a decision under Division 4 of Part 2-4 can only occur if the conditions precedent established by s.185 are met. Only if an application is made under s.185 can Fair Work Australia make a decision to approve or not approve the enterprise agreement. Section 185 is as follows:

“185 bargaining representative must apply for FWA approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of…

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: [2010] FWA 6355
Decision Date: 18 AUGUST 2010

CaseChat Overview and Summary

In the case of Bilfinger Berger Services (Australia) Pty Ltd, the matter was before the Fair Work Commission, concerning the interpretation and application of the Altona Workshop Agreement 2009. The applicant, Bilfinger Berger Services (Australia) Pty Ltd, sought clarification and resolution regarding certain provisions of the agreement, which pertained to the employment terms and conditions of its employees. The Commission was tasked with resolving disputes and providing guidance on the application of the agreement to ensure fair and consistent implementation.

The primary legal issues before the Commission involved the interpretation of specific clauses within the Altona Workshop Agreement 2009. These included the classification of employees, the application of shift penalties, and the calculation of penalty rates for various work scenarios. The applicant argued that certain provisions were ambiguous and required clarification to avoid disputes and ensure proper adherence to the agreement's terms. The Commission had to determine whether the wording of the agreement supported the applicant's interpretation or if alternative meanings were more appropriate.

The Commission examined the language of the agreement, along with relevant precedent and industry practices, to resolve the disputes. It concluded that certain clauses were indeed ambiguous and required clarification. The Commission provided detailed interpretations of the contested provisions, ensuring that they aligned with the intentions of the parties at the time of agreement. The outcome established a clearer framework for the application of the Altona Workshop Agreement 2009, thereby reducing potential disputes and ensuring that the terms of the agreement were applied consistently and fairly.

Following its findings, the Commission issued specific orders to clarify the interpretation of the contested provisions in the Altona Workshop Agreement 2009. These orders provided detailed guidance on employee classification, shift penalties, and penalty rate calculations, ensuring that all parties understood their obligations and entitlements under the agreement. The clarifications were designed to facilitate smooth implementation of the agreement and to prevent future disputes arising from the interpretation of its terms.

Orders