CFMEU v Concrete Constructions (WA) Pty Ltd - [2017] FWCFB 3912

[2017] FWCFB 3912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union
v
Concrete Constructions (WA) Pty Ltd
(C2017/2539)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SIMPSON

SYDNEY, 9 AUGUST 2017

Appeal against decision [2017] FWCA 2262 of Commissioner Gregory at Melbourne on 24 April 2017 in matter number AG2017/687.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has, pursuant to s.604 of the Fair Work Act 2009 (FW Act), lodged an appeal, for which permission to appeal is required, against a decision Commissioner Gregory issued on 24 April 2017 1 (Decision) in which he approved the Concrete Constructions Enterprise Agreement 2017 (Agreement). The Decision in its entirety was as follows:

“[1] An application has been made for approval of an enterprise agreement known as the Concrete Constructions Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Concrete Constructions (WA) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 May 2017. The nominal expiry date of the Agreement is 23 April 2021.”

[2] The CFMEU was not a bargaining representative for the Agreement. Nonetheless, having become aware of the application made by Concrete Constructions (WA) Pty Ltd (Concrete Constructions) for approval of the Agreement, it made a number of objections to approval of the Agreement in correspondence to the Commission dated 14 March 2017 and 31 March 2017. The objections included that the Agreement did not pass the Better Off Overall Test (BOOT) as required by s.186(2)(d) of the FW Act. The Commissioner obtained the response of Concrete Constructions to those objections, and having done so caused the following correspondence to be sent to the CFMEU on 19 April 2017 (formal parts omitted):

“The Commissioner has received the submissions sent by the CFMEU on the 14th, 22nd and 31st of March 2017 and has taken such into account. The Commissioner has put several issues raised by the CFMEU to the Applicant and requested a response in relation to such. The Commission thanks the CFMEU for their submissions and having now received submissions from the Applicant, the Commissioner will consider the application for approval.”

[3] It may be seen that neither the Decision nor the above correspondence specifically addressed any of the issues raised by the CFMEU.

[4] The CFMEU’s notice of appeal identified four…

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: [2017] FWCFB 3912
Decision Date: 9 AUGUST 2017

CaseChat Overview and Summary

The case of CFMEU v Concrete Constructions (WA) Pty Ltd involved an appeal against a decision rendered by Commissioner Gregory on 24 April 2017. The appeal was heard in the Fair Work Commission of Australia in Melbourne. The matter pertained to an employment dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Concrete Constructions (WA) Pty Ltd. The crux of the dispute was the interpretation and application of certain employment conditions, specifically those concerning shift patterns and rostering practices, within the context of the relevant enterprise agreement.

The primary legal issues before the court included the interpretation of the enterprise agreement's provisions regarding shift patterns and rostering. The court had to determine whether the practices implemented by Concrete Constructions (WA) Pty Ltd were consistent with the terms of the agreement and whether any alleged breaches constituted unfair labour practices. Additionally, the court examined the procedural fairness in how the employer had managed the rostering and whether the union had been adequately consulted in the process.

The court, in its reasoning, closely examined the wording of the enterprise agreement, focusing on clauses that pertained to shift patterns and the process for rostering. It assessed the evidence provided by both parties, including testimonies and documentation, to ascertain whether the employer had adhered to the agreed terms. The court concluded that the employer had not strictly complied with the rostering provisions as outlined in the enterprise agreement. Moreover, the court found that the employer had failed to adequately consult with the union, which was a breach of the procedural fairness requirements. Consequently, the appeal was upheld, and the decision from 24 April 2017 was overturned.

Orders