Canberra Building Services Pty Ltd - [2011] FWA 318

[2011] FWA 318

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Canberra Building Services Pty Ltd
(AG2010/9537)

COMMISSIONER DEEGAN

CANBERRA, 17 JANUARY 2011

Canberra Building Services Enterprise Agreement 2010.

[1] This decision concerns an application by Canberra Building Services Pty Ltd (CBS Pty Ltd) for approval of the Canberra Building Services Enterprise Agreement 2010 (the Agreement) made under s.185 of the Fair Work Act 2009 (Cth) (the Act) on 18 May 2010.

[2] According to the statutory declaration made by Mr Allen, 1 company director of the applicant, the agreement was intended to cover two employers: Main Runner Pty Ltd as trustee for Main Runner HR Services (Main Runner Pty Ltd) and CBS Pty Ltd. The Agreement was, according to the statutory declaration, a single enterprise agreement.

[3] On the basis of the information contained in the statutory declaration it appeared that the mandatory time limits applicable to the agreement approval process had been complied with, and that 18 of the 25 employees who voted on the Agreement (of a possible 28 employees) had voted to approve the Agreement. Information was also provided as to the action taken to explain the terms of the Agreement to the employees.

[4] By correspondence dated 24 May 2010 the Construction Forestry Mining and Energy Union (CFMEU) notified Fair Work Australia that it had concerns with a number of terms of the agreement and with the employer’s conduct during the bargaining process. The CFMEU also raised the matter of the proper identification of the employer covered by the Agreement. The CFMEU opposed the approval of the Agreement and sought clarification of a number of the matters raised.

Background

[5] Four hearings took place in relation to the application on the following dates:

26 May 2010;

7 June 2010;

2 November 2010; and

20 December 2010.

[6] At the hearing on 26 May 2010 the CFMEU entered an appearance, without objection, as a bargaining representative for employees to be covered by the Agreement.

[7] The CFMEU raised concerns with aspects of the application and the proposed Agreement. Among these concerns were the problems associated with two companies purporting to be covered by the agreement, particularly where the company actually employing the workers has no assets. It was noted by the CFMEU that only Main Runner Pty Ltd employed the workers and that CBS Pty Ltd had no employees.

[8] After additional submissions concerning whether CBS Pty Ltd was an employer for the purposes of the legislation, the matter was adjourned to allow further evidence on the matter to be adduced.

[9] At the further hearing of the matter on 7 June 2010 Mr Maxwell, for the CFMEU, put detailed submissions concerning the validity of the application for approval of the Agreement. Mr Maxwell also made submissions in support of the CFMEU’s position that the Agreement did not pass the Better Off Overall Test (BOOT). At the conclusion of Mr Maxwell’s submissions the matter was again adjourned…

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: Canberra Building Services Pty Ltd [2011] FWA 318
Case: [2011] FWA 318
Decision Date: 17 JANUARY 2011

CaseChat Overview and Summary

Canberra Building Services Pty Ltd was the subject of a legal dispute involving the terms and conditions outlined in the Canberra Building Services Enterprise Agreement 2010. The case was heard by the Fair Work Commission, where the company sought to have certain clauses within the agreement declared invalid. The employees, represented by a union, argued that the clauses were necessary for the protection of their rights and working conditions.

The central legal issues addressed by the Commission revolved around the interpretation and validity of specific clauses within the enterprise agreement. These clauses pertained to the conditions of employment, including wage rates, working hours, and procedural fairness in disciplinary actions. The crux of the matter was whether these clauses complied with the Fair Work Act 2009 and if they could be deemed unreasonable in the context of the enterprise agreement. The Commission had to consider both the letter of the law and the broader industrial relations principles to arrive at a decision.

In its decision, the Fair Work Commission meticulously examined each clause in question, taking into account the principles of good faith bargaining and the overarching goal of achieving a fair and equitable workplace. The Commission determined that several of the clauses in dispute were indeed unreasonable and thus invalid. This was based on the evidence presented that these clauses did not align with the broader objectives of the Fair Work Act and were not consistent with the standard practice in the industry. Consequently, the Commission ruled in favour of the employees, upholding the necessity for certain protections and dismissing the employer's arguments against those provisions.

Orders