DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2017/6403)

COMMISSIONER MCKINNON

MELBOURNE, 14 MARCH 2018

Application for approval of the Broadspectrum DMSS Enterprise Agreement 2017 – second notification time - notice of employee representational rights not issued within 14 days – application dismissed.

Introduction

[1] Application has been made for approval of a single enterprise agreement known as the Broadspectrum DMSS Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Broadspectrum (Australia) Pty Ltd (Broadspectrum).

[2] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) each oppose the application.

[3] The AMWU contends that Broadspectrum did not take all reasonable steps to give employees a Notice of Employee Representational Rights (NERR) in accordance with section 173(1) of the Act and accordingly the Agreement cannot be approved. The CEPU supports the AMWU’s position. Broadspectrum contends that it has met all of the relevant requirements for approval and seeks that the Agreement be approved without delay.

[4] Directions were issued and a hearing was conducted on 6 February 2018. During the hearing, an additional issue in relation to coverage of the Agreement arose and directions were issued for the filing of further submissions. A second hearing was held by telephone on 8 March 2018 and additional submissions were filed on 9 March 2018.

Submissions

[5] The parties generally agree as to the history of bargaining, including that there was a notification time in relation to the Agreement on 20 May 2016. The Agreement is intended to replace the Transfield Services Greenfields LMM Enterprise Agreement 2013-2016 (the Transfield Agreement).

[6] The AMWU contends 1 as follows:

1. Where the scope of a proposed enterprise agreement is contested, a NERR must be issued to the broader range of employees within the contested scope. 2

2. Coverage of storepersons (including at Broadspectrum’s Kapooka site) and non-materiel maintenance (salaried) employees was the subject of bargaining from June 2016 until around late November 2017. A NERR was required to be issued to employees in these classifications.

3. This was not done, with the result that not all reasonable steps were taken to give employees notice of their right to be represented in accordance with section 173 of the Act.

[7] Broadspectrum submits 3 as follows:

1. It initiated bargaining by advising the AMWU of its agreement to bargain on 20 May 2016.

2. During the period from 23 May 2016 – 30 May 2016, a NERR was issued to employees covered by the Agreement, predominantly by hand and by display on the noticeboard as well as by email or post for employees who were absent from work (the Notice).

3. On 14 June 2016 or 12 July 2016, Broadspectrum agreed to expand…

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: [2018] FWC 1516
Decision Date: 14 MARCH 2018

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, applied to the Fair Work Commission for approval of the Broadspectrum DMSS Enterprise Agreement 2017. The applicants were the employer and the Maritime Union of Australia. The nature of the dispute involved whether the second notification time for employee representational rights was correctly observed and whether the agreement should be approved despite the delay in issuing the notice. The Fair Work Commission was the court that heard the matter.

The legal issues before the Commission were whether Broadspectrum had complied with the requirement to give employees notice of their representational rights within 14 days, and if not, whether this non-compliance warranted dismissal of the application for approval of the enterprise agreement. Broadspectrum had failed to issue the second notification within the specified time frame, which raised concerns about employee awareness and participation in the enterprise agreement process. The Commission had to determine whether this procedural lapse was significant enough to affect the approval of the agreement.

The Fair Work Commission considered the importance of timely notification to ensure employees were aware of their rights and could effectively participate in the agreement's negotiation process. The Commission held that the delay in issuing the second notification was a procedural irregularity that impacted the integrity of the process. Despite acknowledging Broadspectrum's efforts to rectify the situation, the Commission concluded that the procedural failure was material and warranted dismissal of the application. Therefore, the Fair Work Commission dismissed the application for approval of the Broadspectrum DMSS Enterprise Agreement 2017 due to the non-compliance with the notification requirement.

Orders