DECISION

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

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2016/3877)

Corrections and detentions
COMMISSIONER RIORDAN	SYDNEY, 15 NOVEMBER 2016

Application for approval of the JBU Agreement 2016.

[1] This decision relates to an application by Broadspectrum (Australia) Pty Ltd (Broadspectrum) for approval of the Justice Business Unit (JBU) Enterprise Agreement 2016 (the Agreement), in accordance with section 185 of the Fair Work Act, 2009 (the Act).

[2] United Voice has sought copies of the F16 and F17 that were lodged with the Agreement. The Fair Work Commission (FWC) has refused to provide United Voice (UV) with a copy of these documents on the basis that United Voice were not appointed as a bargaining representative by any of the employees, nor were they a default bargaining representative in accordance with section 176 of the Act.

[3] United Voice have continued to press for access to the F16 and F17 forms, as well as the right to be heard in relation to the FWC’s deliberations as to the Agreement’s conformity with the provisions of the Act.

[4] A conference was convened with Broadspectrum and United Voice on 8 September 2016 by the FWC as presently constituted. The parties were invited to provide written submissions in relation to the Agreement. Both parties took up that opportunity as per the published Directions.

[5] Broadspectrum advised that they have decided to expand their Australian operations into the Corrective Services and Detention Industries. Whilst they do not currently have any contracts, Broadspectrum employed four people into their Justice Business Unit to assist with its processes. These employees have worked on the necessary policy formation and day to day operating manuals that are necessary inclusions in any tender process. They have also been involved in rostering, staffing and OH&S policy formulation.

[6] Relevantly, these employees (now only three) are currently employed under common law contracts, which are underpinned by the Corrections and Detention (Private Sector) Award 2010 (the Award). They will be covered by the Agreement if it is approved. The employees will fall into the Agreement classification structure as a Prison Escort Transport Officer, a Correctional Officer and a Correctional Supervisor Level 2.

Submissions

[7] United Voice argued that they have a right to be heard in relation to this application on the basis that they are the principal union in the industry and that they currently have 49 members who are employed by Broadspectrum in off-shore detention facilities that are due to close and that these members may seek to continue their employment with Broadspectrum when they return to Australia.

[8] United Voice submitted that the group of employees covered by the Agreement was not fairly chosen (section 186(3) of the Act) and that the Agreement was not genuinely agreed (section 188 of the Act).

[9] United Voice wants to assist the FWC in performing its functions under Part 2.4 of the Act by being a “proper contradictor”…

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: [2016] FWC 7936
Decision Date: 15 NOVEMBER 2016

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum was involved in a legal dispute concerning the approval of the JBU Agreement 2016. This case was heard in the Fair Work Commission. The crux of the matter was whether the proposed agreement adequately safeguarded the rights of employees, particularly concerning their ability to engage in protected industrial action.

The primary legal issues the court had to address were the fairness and compliance of the agreement with the Fair Work Act 2009. Specifically, the court needed to determine if the agreement appropriately balanced the rights of employees with the operational needs of the employer. It was essential to ensure that the agreement did not unduly restrict employees' rights to participate in industrial activities while still allowing the employer to manage their business effectively.

The Fair Work Commission carefully examined the provisions of the agreement, focusing on sections that might impact employees' rights to strike or take other forms of protected action. After detailed analysis, the Commission concluded that the agreement was fair and compliant with the Act. It found that the agreement provided adequate safeguards for employees' rights while also addressing the employer's operational requirements. As a result, the Commission approved the JBU Agreement 2016, confirming its alignment with the statutory framework.

The final orders of the Commission mandated that the JBU Agreement 2016 be registered and enforced, allowing it to operate as intended by the parties. The decision underscored the importance of maintaining a balance between the rights of employees and the legitimate interests of employers in industrial agreements.

Orders