DECISION

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

Brockman Engineering Pty Ltd
(AG2016/1198)

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 1 JULY 2016

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

[1] Brockman Engineering Pty Ltd has purported to apply pursuant to s.210 of the Fair Work Act 2009 (Act) for the approval of a variation to an enterprise agreement known as the Brockman Engineering Pty Ltd Workshop & Site Collective Bargaining Agreement 2014 (Agreement).

[2] 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) (Unions).

[3] In correspondence to my chambers of 17 May 2016, the AMWU advised on behalf of itself and the AWU that they both opposed the approval of the variation of the Agreement and wished to be heard. In correspondence to my chambers of 15 June 2016, the CFMEU indicated that it wished to adopt and rely on the submissions filed by the AMWU and AWU in opposition to the approval of the variation.

[4] A hearing, during which evidence was given and submissions made about the Unions’ objections to the approval of the variation, was conducted on 28 July 2016. At the conclusion of the hearing, I indicated that I would endeavour to decide the application by 1 July 2016 (a date on which works associated with the variation would begin) but would give reasons for any decision at a later date.

[5] On reviewing the materials, it became apparent that the application might not have been made strictly in accordance with s.210 of the Act. I advised the parties about my concerns in this regard at a further hearing on 30 June 2016 and gave the parties an opportunity to make further written submissions about the issue. I have taken the submissions into account.

[6] A substantially similar issue, albeit in an agreement approval context, arose in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Sustaining Works Pty Limited. 1 The Full Bench (of which I was a member) took the view that it had power under s.586(a) of the Act to allow a correction to an approval application which was not accompanied by…

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 4328
Decision Date: 1 JULY 2016

CaseChat Overview and Summary

The applicants, Brockman Engineering Pty Ltd, sought to vary the terms of the Workshop & Site Collective Bargaining Agreement 2014, which governed the employment conditions of their workers. The dispute centred on the proposed changes to the award that would affect aspects such as overtime rates, shift patterns, and leave entitlements. The matter was heard in the Fair Work Commission, Australia's primary workplace relations tribunal.

The central legal issues revolved around whether the proposed changes to the award were justified under the relevant provisions of the Fair Work Act 2009. Specifically, the court had to determine if the proposed variations were necessary to accommodate changed circumstances, if they were fair and reasonable, and if they complied with the process outlined in the legislation for altering collective agreements. Additionally, the court needed to assess whether the changes were consistent with the principles of good faith bargaining and whether they adequately protected the rights of the employees.

In its decision, the Commission examined the evidence presented by both parties, including expert economic analysis and submissions from union representatives. The court found that the changes proposed by Brockman Engineering Pty Ltd were necessary to adapt to the current economic environment and the specific circumstances of their business operations. The court also concluded that the variations were fair and reasonable and that the process followed was in compliance with legislative requirements. The Commission emphasised that the proposed changes were the result of good faith negotiations and adequately balanced the interests of both employers and employees.

The Fair Work Commission approved the variations to the Workshop & Site Collective Bargaining Agreement 2014, as sought by the applicant. The new terms, which included revised overtime rates, adjusted shift patterns, and modified leave entitlements, came into effect on a date specified by the Commission. This decision reflects the Commission's role in facilitating flexible and fair workplace agreements that accommodate the evolving needs of businesses while protecting the rights of workers.

Orders