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 McKinnon on 15 September 2017[1](the Decision) to approve the Shamrock Civil Pty Ltd Enterprise Agreement 2017 (the Agreement).

The Commissioner set out comprehensive reasons for her decision. The reasons for the decision include a reference to the history of the involvement of the CFMEU in the approval application. The CFMEU Queensland/NT branch and the WA Branch sought and consistent with the Full Bench decision in CFMEU v Ron Southon Pty Ltd[2] were provided with copies of the Form F16, Form F17 and Notice of Employee Representational Rights (NERR) filed by the Applicant before the matter was allocated to Commissioner McKinnon. The CFMEU then indicated that they wished to make submissions. The Commissioner subsequently sought information from the CFMEU as to whether they were a bargaining representative for the purposes of s.176 of the Act. The response, or rather lack thereof from the union to the request for this information led the Commissioner to form the preliminary view that the CFMEU was not a bargaining representative. Nevertheless, the Commissioner elected to allow the CFMEU to provide submissions in respect to the consideration of the Better off Overall Test (BOOT) as she considered the CFMEU likely to be in a position to assist the Fair Work Commission (the Commission) in consideration of this issue, having regard to its particular knowledge of the Building and Construction General On-site Award 2010.[3] The bulk of the reasons for the decision dealt with the application of the BOOT to the Agreement.

Ultimately, having accepted a number of undertakings from the Applicant, the Commissioner determined “on balance” that she was satisfied the Agreement passed the BOOT.[4] Further, the Commissioner was satisfied the undertakings provided did not cause financial detriment to any employee covered by the agreement nor result in substantial change to the Agreement.

There is no detailed consideration in the decision of the other additional requirements to which the Commission is to have regard but there is a general statement which indicates that the Commissioner was satisfied that the additional requirements in ss.186, 187, 188 and 190 as are relevant to this application for approval had been met.

CFMEU’s standing to appeal

The CFMEU submit that they represent workers in the building and construction industry and that the Respondent’s employees are members or are eligible to be members of the CFMEU; that approval of the agreement and its effect concern the CFMEU; it is likely that members of the CFMEU will be engaged by the Respondent in the future and that…

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 Shamrock Civil Pty Ltd

Details

AGLC: CFMEU v Shamrock Civil Pty Ltd [2018] FWCFB 1772
Case: [2018] FWCFB 1772
Decision Date: 26 March 2018

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) appealed a decision of Commissioner McKinnon, who had approved an Enterprise Agreement between Shamrock Civil Pty Ltd and its employees. The CFMEU argued the Agreement did not meet the statutory requirements for approval, particularly that it had not been genuinely agreed to by the employees. The appeal was heard by a Full Bench of the Fair Work Commission. The key legal issues were whether the CFMEU had standing to appeal, whether the Commissioner had erred in approving the Agreement, and whether the approval could stand if the employees had not genuinely agreed to the terms. The Full Bench allowed the appeal, finding that the Commissioner had erred in concluding that the Agreement had been genuinely agreed to by the employees. The Bench found that the employer had not adequately explained the terms and effects of the Agreement to the employees, contrary to statutory requirements. The Full Bench quashed the Commissioner's decision approving the Agreement, highlighting the importance of properly informing employees about the terms of an agreement to ensure genuine agreement. The Full Bench granted permission to appeal and upheld the appeal on the ground that the Agreement had not been genuinely agreed to by the employees, ordering that the decision approving the Agreement be quashed.

Orders