Brockman Engineering Pty Ltd

[2016] FWCA 4478

[2016] FWCA 4478

The document previously issued with the document reference [2016] FWC 4328 on 1 July 2016 is replaced with the attached. The document references have been updated.

Suzie Kairouz

Associate to Deputy President Gostencnik

8 July 2016

[2016] FWCA 4478

FAIR WORK COMMISSION

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 a signed copy of the agreement.2 I see no reason why I should adopt a different approach in the instant case.

[7] Along with its submission filed on 30 June 2016, the Applicant has filed and served a corrected copy of the signed variation agreement. In the circumstances as indicated below at [8], I will allow pursuant to s.586(a) of the Act, the correction. The variation agreement is signed by Mr Rosemeier, and his authority to sign is stated as a “representative of employees covered by the agreement”. The Unions challenge the authority, however the submissions made by them are contrary to the construction of the phrase “representative of employees covered by the agreement” adopted by a Full Bench in McDermott Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 3. Although I have some reservations about the analysis in McDermott, I am not persuaded that the decision is plainly wrong and so I propose to follow it. Applying the analysis, Mr Rosemeier is an employee in a class of employees covered by the Agreement and is therefore a representative of employees covered by the agreement as varied.4 The variation Agreement was therefore signed appropriately with the result that there is now a valid application under s.210 of the Act.

[8] Furthermore, I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met. The consolidated version of the Agreement, as varied, is attached to this decision. In accordance with s.216 of the Act the variation will operate on and from 1 July 2016. As earlier indicated, further reasons for my decision will be published in due course.

DEPUTY PRESIDENT

Appearances:

Mr M Follett, Counsel for the Applicant.

Mr E White, Counsel for the AMWU and the AWU.

Hearing details:

2016.

Melbourne.

June 28.

June 30.

Further written submissions:

Applicant’s Further Submissions, 30 June 2016.

AMWU and AWU’s Further Submissions, 30 June 2016.

Applicant’s Submissions in reply, 30 June 2016.

 1   [2015] FWCFB 4422.

 2   Ibid at [28]-[32].

 3   [2016] FWCFB 2222 AT [41] – [57].

 4 Ibid at [56].

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