[1] The Construction, Forestry, Mining, and Energy Union (CFMEU) has filed a notice of appeal under s.604 of the Fair Work Act 2009 (FW Act) in which it seeks permission to appeal and appeals against a discretionary decision 1 (Decision) of Commissioner Roe made on 9 December 2016 approving the CSRP Enterprise Agreement 2016 (Agreement). The Agreement was approved after the Commissioner accepted certain undertakings proffered by CSRP Pty Ltd (CSRP), the employer covered by the Agreement. The CFMEU was not a bargaining representative in relation to the Agreement. It did not have a member who was employed by CSRP when the Agreement was made and it did not make, nor seek to make any submissions concerning whether the Agreement should be approved.

[2] The Agreement is expressed to cover all employees of CSRP at any operational site above the 26^th parallel that is owned or operated by Fortescue Metals Group Ltd or a subsidiary thereof, employed in a classification for which the Agreement makes provision. 2 At the time when the Agreement was made there were 13 employees covered by the Agreement. CSRP did not at that time employ any casual or part-time employees amongst the 13 employees covered by the Agreement. Another enterprise agreement titled Fortescue Team Member Agreement 2013 was in operation and contained substantially identical terms to those contained in the Agreement. The CFMEU is covered by that agreement and the employer covered by it is a related entity to CSRP.

[3] It is not in contest that the Agreement operates in the mining industry. The CFMEU is entitled under its rules to enrol as members and to represent the industrial interests of various employees engaged in the mining industry. It is also not in contest that the CFMEU has as members persons who are employed in the mining industry, and in particular has a number of members who are employed by entities related to CSRP, who perform the same or similar work for the related entities as the employees engaged by CSRP perform under the Agreement.

[4] The CFMEU is also covered by enterprise agreements operating in the mining industry which cover employees engaged in classifications that are covered by the Agreement, specifically locomotive drivers. It has an interest in the terms and conditions of employment of persons engaged as locomotive drivers in the mining industry and it appears more than remotely possible that the CFMEU will enrol as members, employees who are to be engaged as locomotive drivers by CSRP and who will be covered by the Agreement.

Grounds of Appeal

[5] The grounds of appeal raised by the CFMEU may be…

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.

Continue reading CFMEU v CSRP Pty Ltd

Details

AGLC: CFMEU v CSRP Pty Ltd [2017] FWCFB 2101
Case: [2017] FWCFB 2101
Decision Date: 19 APRIL 2017

CaseChat Overview and Summary

The parties involved in the case were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and CSRP Pty Ltd. The dispute arose from a decision made by Commissioner Roe at the Fair Work Commission (FWC) in Melbourne on 9 December 2016, concerning a matter numbered AG2016/7292. The CFMEU sought to appeal this decision, which was rendered in relation to an industrial matter.

The central legal issue before the court was whether the FWC had correctly exercised its jurisdiction and applied the relevant principles of law in making the decision that was now subject to appeal. Specifically, the CFMEU questioned the FWC's interpretation and application of certain provisions within the Fair Work Act 2009. The court was tasked with reviewing the reasoning and findings of the FWC to determine if there were any errors that warranted setting aside the decision.

In reviewing the matter, the court examined the FWC's application of the law and its interpretation of the statutory provisions. The court found that the FWC had properly exercised its jurisdiction and correctly applied the relevant principles of law. The findings and reasoning of the FWC were sound, and there were no grounds for the appeal to succeed. Consequently, the court upheld the decision of the FWC and dismissed the appeal. The orders of the FWC remained in place, and the decision appealed against was affirmed.

Orders