REASONS FOR DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Brockman Engineering Pty Ltd
(AG2016/1198)

BROCKMAN ENGINEERING PTY LTD WORKSHOP & SITE COLLECTIVE BARGAINING AGREEMENT 2014

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 26 JULY 2016

Application for variation of the Brockman Engineering Pty Ltd Workshop & Site Collective Bargaining Agreement 2014.

Background

[1] On 1 July 2016, I approved a variation to an enterprise agreement titled the Brockman Engineering Pty Ltd Workshop & Site Collective Bargaining Agreement 2014 (Agreement). 1 In doing so, I indicated that further reasons for my decision would be published in due course.2 These are my further reasons.

[2] Brockman Engineering Pty Ltd (Brockman) has applied pursuant to s.210 of the Fair Work Act 2009 (Act) for the approval of a variation to the Agreement. A vote to approve the variation occurred on 4 May 2016.

[3] The Agreement is expressed to cover all of the Applicant’s employees who are employed at the Applicant’s workshop and at any sites around Australia where maintenance or storage tank work is carried out as described in clause 3.2.1 of the Agreement in classifications or occupations specified in the Agreement as described in clause 3.2.2 and who are eligible for membership of one of the unions covered by the Agreement. The unions covered by the Agreement are the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, Mining and Energy Union (CFMEU) and the Australian Workers Union (AWU) (collectively, the Unions).

[4] The Unions opposed the approval of the variation of the Agreement and wished to be heard. A hearing, during which evidence was given and submissions made about the Unions’ objections to the approval of the variation, was conducted on 28 June 2016.

[5] The approval of the variation to the Agreement is opposed on three bases. First, it is said that Brockman did not provide evidence that all persons eligible to vote to approve the variation, were given an opportunity to vote. 3 Secondly, the Unions contend that Brockman did not take all reasonable steps to provide to relevant employees with an explanation of the variation and its effect.4 Thirdly, the Unions contend that there are reasonable grounds for believing that relevant employees may not have genuinely agreed to the variation.5 I deal with each of these bases below.

Vote of employees to approve the variation

[6] At the relevant time during which voting to approve the variation took place, there were 90 employees covered by the Agreement. 6 Seventy seven of these employees cast a valid vote and 43 of those employees who cast a valid vote, voted to approve the variation to the Agreement.7

[7] Brockman is a mechanical contractor operating predominately in the water and oil and gas industries. It operates a medium sized workshop, fabricating piping and steel structures. Site crews are engaged in the construction…

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.

Keep reading for free

Create a free CaseChat account to read Brockman Engineering Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FWC 5011
Decision Date: 26 JULY 2016

CaseChat Overview and Summary

The case involved Brockman Engineering Pty Ltd, the applicant, seeking a variation of the existing Workshop & Site Collective Bargaining Agreement 2014. The dispute was brought before the Fair Work Commission. The crux of the matter revolved around the employer's request to amend certain terms of the agreement to better align with the company's operational needs and financial constraints. The employee representatives, who were parties to the agreement, contested the application, arguing that the proposed changes were unfair and would negatively impact the employees' conditions.

The legal issues before the court encompassed the interpretation of the existing agreement, the principles governing variations in collective bargaining agreements, and the balance of interests between the employer's right to manage their business and the employees' right to fair and equitable working conditions. The court had to determine whether the proposed changes were reasonable and justified under the Fair Work Act 2009 and whether the process followed by the applicant was fair and transparent.

In its decision, the Fair Work Commission found that the applicant had not demonstrated sufficient justification for the proposed changes. The commission highlighted that the changes sought would have a detrimental effect on the employees' conditions without a corresponding benefit to the employer. The court also noted that the employer had not adequately engaged with the employee representatives during the negotiation process. Consequently, the application for variation was dismissed. The commission emphasised the importance of maintaining fair and constructive industrial relations and ordered that the existing agreement remain in effect.

Orders