[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Gregory on 21 July 2017 1 (Decision) to approve the KIS North West Onshore Operations Enterprise Agreement 2017-2021 (Agreement).

[2] The CFMEU was not a bargaining representative for the Agreement. However, having become aware of the application for approval, the union advised the Commission that it objected to it.In particular, it stated that it did not believe the Agreement passed the “better off overall test” (BOOT), as required by s 186(2)(d), and sought to be heard.

[3] In the Decision, the Commissioner noted that the CFMEU had not identified any particular reason why it believed the requirements of the BOOT had not been satisfied, 2 and stated that, in the circumstances, he was not satisfied that the union should be given an opportunity to be heard.3 The Commissioner concluded that he was satisfied that the requirements for approval of the Agreement had been met and approved the Agreement, subject to various undertakings.4

[4] In its Notice of Appeal, the CFMEU contended that it represents workers in the construction industry, that the Commissioner’s decision to approve the Agreement affects its members, and accordingly it is a “person aggrieved” by the decision of the Commissioner for the purposes of s 604(1) of the Fair Work Act 2009 (FW Act). The respondent, KAEFER Integrated Services Pty Ltd (Kaefer) accepted that the CFMEU had standing to bring the appeal, consistent with the decision of the Full Bench in CFMEU v CSRP Pty Ltd. 5

[5] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 6 There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.

[6] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 7

[7] The CFMEU’s Notice of Appeal puts forward four grounds of appeal, all of which contend that the Commissioner erred by approving…

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 KAEFER Integrated Services Pty Ltd

Details

AGLC: CFMEU v KAEFER Integrated Services Pty Ltd [2017] FWCFB 5630
Case: [2017] FWCFB 5630
Decision Date: 20 NOVEMBER 2017

CaseChat Overview and Summary

The case involves the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) appealing a decision made by Commissioner Gregory at the Fair Work Commission (FWC) in Melbourne. The matter concerns an application for an order to prevent an employer, KAEFER Integrated Services Pty Ltd, from dismissing or taking adverse action against employees on the basis of their union membership or activities. The CFMEU, as the representative of the employees, sought the order under the Fair Work Act 2009.

The primary legal issue before the court was whether the employer's proposed dismissals of the employees were genuinely related to the employees' union activities. The CFMEU argued that the dismissals were retaliatory in nature and not genuinely related to the employees' union activities. The court had to determine if the employer's actions fell within the exception for genuine operational reasons as provided under section 352 of the Fair Work Act.

The court held that the dismissals were not genuinely related to the employees' union activities, and instead, were retaliatory in nature. The court found that the employer's actions did not fall within the exception for genuine operational reasons as provided under section 352 of the Fair Work Act. The court found that the employer had not discharged the onus of proving that the dismissals were genuinely related to the employees' union activities. As a result, the court held that the employer's proposed dismissals were unlawful, and the appeal was allowed.

The court made an order that the employer must reinstate the employees with full back pay and compensation for the unlawful dismissals. The court also ordered the employer to take steps to ensure that similar incidents do not occur in the future. The decision reinforces the importance of employers ensuring that any dismissals or adverse actions taken against employees are genuinely related to the employees' union activities and not retaliatory in nature.

Orders