DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum Australia Pty Limited t/a Broadspectrum
(AG2019/3782 & AG2019/4670)

BROADSPECTRUM PROJECT SERVICES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 21 JANUARY 2020

Applications for approval and variation of the Broadspectrum Project Services Enterprise Agreement 2019.

[1] Broadspectrum has applied for approval of a single enterprise agreement known as the Broadspectrum Project Services Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). During the course of those proceedings, Broadspectrum applied for variation of the Agreement under s.217 of the Act.

[2] I have determined to approve the Agreement and to allow the variation of the Agreement as approved. The reasons for this decision follow.

Context

[3] Bargaining for an enterprise agreement to replace the Transfield Services Limited (Illawarra Operations & Maintenance Services – NSW) Enterprise Agreement 2015-2017 (Transfield Services Agreement) commenced on 19 February 2019.

[4] Each of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Australian Workers’ Union (AWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were bargaining representatives of employees to be covered by the proposed enterprise agreement and involved in the negotiations.

[5] On 20 September 2019, the Agreement was made when a majority of Broadspectrum’s employees to be covered by the Agreement voted to approve it.

[6] On 3 October 2019, the application for approval of the Agreement was filed with the Commission (Approval Application).

[7] Initially, the bargaining representatives advised the Commission as follows:

a) The AWMU and the AWU supported approval of the Agreement however elected not to advise the Commission whether they agreed with Broadspectrum’s statutory declaration accompanying the application; 1

b) The CFMMEU opposed approval on the basis that the Agreement was not “genuinely agreed” within the meaning of s.188, and sought to be heard in relation to its opposition. 2

[8] On 23 October 2019, the CFMMEU’s objection was programmed for hearing with the exchange of materials in advance. The AMWU joined the CFMMEU in its opposition. In filed materials, the CFMMEU and the AMWU elaborated on the objection(s) as follows:

a) The Agreement was not genuinely agreed for the purposes of s.188(1)(c) of the Act and coverage was not fairly chosen for the purposes of s.186(3) and (3A) of the Act (First Objection);

b) Relatedly, Broadspectrum did not take all reasonable steps to ensure that the terms and effect of the Agreement were explained to the relevant employees for the purposes of s.180(5), namely the coverage provision (Second Objection); and

c) The requirement at s.180(2) was not met because Broadspectrum did not provide employees with copies of the Building and Construction General On-Site Award (Award), or access to copies, and the Award is incorporated in the Agreement (Third Objection).

[9] On 3 December 2019, Broadspectrum filed an application to correct an ambiguity or uncertainty in the Agreement (Variation Application). The Variation Application sought…

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: [2020] FWCA 205
Decision Date: 21 JANUARY 2020

CaseChat Overview and Summary

Broadspectrum Australia Pty Limited, trading as Broadspectrum, sought approval and variation of the Broadspectrum Project Services Enterprise Agreement 2019. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Australian Workers’ Union (AWU), and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were the bargaining representatives involved in the negotiations. The CFMMEU opposed the approval of the Agreement, asserting it was not genuinely agreed and coverage was not fairly chosen. The AWU supported approval but did not comment on Broadspectrum's statutory declaration, while the AMWU also supported the approval of the Agreement. Broadspectrum subsequently applied for variation of the Agreement to clarify its scope, which was supported by the AMWU and the CFMMEU. The Fair Work Commission considered the objections and the variation application concurrently. The Deputy President found that the Agreement was genuinely agreed and approved it, noting a minor procedural non-compliance with the requirement to provide employees with copies of, or access to, the incorporated Building and Construction General On-Site Award. However, this non-compliance did not disadvantage the employees and was considered a minor procedural or technical error. The Deputy President also allowed the variation of the Agreement to clarify its scope, finding it appropriate in the circumstances given the consent of the parties and the absence of opposition. The approved and varied Agreement will operate from 28 January 2020, with a nominal expiry date of 28 January 2023. The Agreement covers the AMWU, AWU, and CFMMEU as bargaining representatives.

Orders