[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…

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] FWCA 4478
Decision Date: 1 JULY 2016

CaseChat Overview and Summary

The parties involved in the case were Brockman Engineering Pty Ltd, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the employee representative. The dispute arose from an application for the variation of the Brockman Engineering Pty Ltd Workshop & Site Collective Bargaining Agreement 2014. The case was heard in the Fair Work Commission, Australia’s independent statutory body responsible for the resolution of workplace disputes and the development of the Fair Work system.

The primary legal issue before the Commission was whether the proposed variations to the existing collective agreement were in line with the Fair Work Act 2009. The variations sought by the employer related to the classification of certain employees, changes to shift patterns, and alterations to the penalty rates for weekend work. The union argued that these changes were not warranted and would result in a deterioration of the employees' conditions. The employer contended that the changes were necessary to ensure the continued viability and competitiveness of the business.

After considering the submissions from both parties, the Commission determined that the proposed variations did not meet the criteria for a "better off overall or at least not worse off" test as required by the Fair Work Act. The Commission found that the changes to employee classifications and penalty rates would negatively impact the employees' conditions, without providing any significant benefits to the employer. The Commission further noted that the employer had not demonstrated a sufficient justification for the proposed changes, particularly in relation to the alterations to shift patterns and penalty rates. As a result, the application for variation was dismissed in its entirety.

Orders