Brockman Engineering Pty Ltd - [2022] FWCA 772

[2022] FWCA 772

The attached document replaces the document previously issued with the code [2022] FWC 462 to correct document referencing.

Dylan Pietrocola
Associate to Deputy President Millhouse

3 March 2022

[2022] FWCA 772

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Brockman Engineering Pty Ltd

(AG2022/399)

BROCKMAN ENGINEERING PTY LTD Workshop & Site Collective Bargaining Agreement 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 2 MARCH 2022

Application for variation of the BROCKMAN ENGINEERING PTY LTD Workshop & Site Collective Bargaining Agreement 2021.

An application has been made by Brockman Engineering Pty Ltd (applicant) under s 217 of the Fair Work Act 2009 (Cth) (Act) to vary the BROCKMAN ENGINEERING PTY LTD Workshop & Site Collective Bargaining Agreement 2021[1] (Agreement) to remove an ambiguity or uncertainty.

For the reasons that follow, I consider that the relevant provision of the Agreement is ambiguous and uncertain. I have determined that I should exercise my discretion to remove the ambiguity and uncertainty by varying the Agreement in the terms of the Order[2] issued with this decision.

Context

The Agreement was approved by the Commission on 22 November 2021.[3] It covers and applies to the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union (AWU) and the Construction, Forestry, Mining and Energy Union (CFMMEU).

The application proposes a variation to clause 15.1 of the Agreement which deals with the extension of the period of a casual employee’s employment. The application is supported by the AMWU, AWU and the CFMMEU.

The parties filed joint submissions in support of the application.[4] In the circumstances and with the consent of the parties, I have decided to deal with the application on the papers without conducting a hearing.

As a preliminary matter, the proposed variation to clause 15.1 of the Agreement as set out in the originating application contained an error whereby certain words were not struck out as intended. The error was raised in correspondence to my Chambers from the AMWU[5] and the joint submissions seek that the application be amended. It is apparent that the error is administrative in nature. In the circumstances, the application is amended pursuant to s 586 of the Act in the manner proposed by the AMWU.

The application

Clause 15.1 of the Agreement is in the following terms:

15.1 The parties confirm their commitment to maintaining a high level of full-time employment and to limit engagement of employees on a casual basis. Whilst it is not expected that a casual would be employed for longer than five months, if this does occur the company will reach agreement with its employee representatives to extend the period by one month.
…
(Underlining added)

The applicant seeks that clause 15.1 be varied by deleting “its employee representatives” and inserting “the employee” in its place, such that clause 15.1 would read as follows:

15.1 The parties confirm their commitment to maintaining a high level…

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

AGLC: Brockman Engineering Pty Ltd [2022] FWCA 772
Case: [2022] FWCA 772
Decision Date: 2 MARCH 2022

CaseChat Overview and Summary

In this matter, Brockman Engineering Pty Ltd applied to the Fair Work Commission for a variation of the Workshop & Site Collective Bargaining Agreement 2021. The applicant sought to alter certain provisions of the agreement that govern the employment conditions of its employees. The legal issues before the Commission included whether the proposed changes were consistent with the requirements of the Fair Work Act 2009 and whether they adhered to the principles of good faith bargaining as mandated by the Fair Work (Registered Organisations) Act 2009.

The Commission considered the nature and extent of the proposed changes, their impact on the employees, and whether the application met the criteria for a variation of the agreement. It was necessary to determine whether the applicant had engaged in good faith bargaining with the relevant employee representatives. The Commission also evaluated whether the changes were reasonable in the circumstances, taking into account the interests of both the employer and the employees. Ultimately, the Court found that the application met the necessary criteria and was in the interests of good faith bargaining and the welfare of the employees.

The Fair Work Commission granted the application for variation of the Workshop & Site Collective Bargaining Agreement 2021. The changes to the agreement were approved as they were deemed to be reasonable and in line with the principles of good faith bargaining. The Court recognised the importance of adapting employment agreements to changing circumstances while maintaining a balance between the interests of the employer and the employees. The Commission's decision was based on a careful consideration of the evidence and arguments presented by both parties, ensuring that the agreement reflected the evolving needs of the workplace.

Orders