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 17 January 2017[1] (Decision) to approve the TR Construction Services Pty Ltd Enterprise Agreement 2016 (Agreement). The Commissioner’s reasons in the Decision for approving the Agreement were brief. Relevantly, he found as follows:

“[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.”

TR Construction Services Pty Ltd (the Respondent) initially contended that the CFMEU lacked constitutional coverage of the employees to be covered by the Agreement and that as a result it was not “a person aggrieved” by the Decision and lacked standing to bring the appeal. During the course of the hearing before us, we asked the Respondent to consider the High Court decision in Re Coldham: Ex Parte Australian Workers Union[2] (Re Coldham) in the context of whether the CFMEU did in fact have constitutional coverage of the employees to be covered by the Agreement. The Respondent was given the opportunity to provide further written submissions. In those submissions the Respondent conceded that if the approach in Re Coldham was accepted by us, then the CFMEU would be eligible to represent the industrial interests of at least one of the occupations listed in clause 6.1 of the Agreement.

We see no basis upon which to depart from the approach taken by the High Court in Re Coldham and accordingly we find that the CFMEU has standing to bring this appeal, it being a “person who is aggrieved by a decision” for the purposes of s.604(1).

Grounds of appeal

The CFMEU’s grounds of appeal, as contained in its amended notice of appeal, were as follows:

1. The Commissioner erred in failing to give any reasons for his decision not to allow the Appellant to be heard on the Respondent's application for approval of the TR Construction Services Pty. Ltd. Enterprise Agreement 2016 (the 'TR Agreement').
2. The Commissioner erred in failing to afford the Appellant procedural fairness by not giving any reasons for his decision not to allow the Appellant to be heard in relation to the Respondent's application for approval of the TR Agreement.
3. The Commissioner erred in failing to afford the Appellant procedural fairness by not giving the Appellant an opportunity to be heard as to why the Commissioner should hear from the Appellant pursuant to s 590 of the FW Act.
4. The Commissioner erred in being satisfied that the Respondent had met the…

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 TR Construction Services Pty Ltd

Details

AGLC: CFMEU v TR Construction Services Pty Ltd [2017] FWCFB 1928
Case: [2017] FWCFB 1928
Decision Date: 7 JULY 2017

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) appealed a decision by Commissioner Gregory to approve the TR Construction Services Pty Ltd Enterprise Agreement 2016. The CFMEU argued that the agreement did not meet the "better off overall test" (BOOT) as required by s.186(2)(d) of the Fair Work Act 2009. The CFMEU contended that the wage rates in the Agreement were less beneficial than the wage rates in the Mining Industry Award 2010 because the Agreement incorporated an all-purpose allowance without providing any sufficiently compensating benefit. The appeal was heard by Vice President Hatcher, Deputy President Dean and Commissioner McKenna.

The court determined whether the CFMEU had demonstrated appealable error in relation to the approval of the Agreement. The court considered whether the Commissioner could have been satisfied that the Agreement passed the BOOT. The court found that the Commissioner erred in concluding that the Agreement passed the BOOT, as the absence of the industry allowance could not be offset by other allowances which only applied in certain circumstances. The court concluded that the appeal should be upheld in respect of ground 5 of the appeal, and the decision should be quashed and the application for approval of the Agreement should be re-determined.

The court refused to grant permission to appeal in relation to the other grounds of appeal. The court found that the CFMEU had not demonstrated appealable error in relation to these grounds. The court also considered two additional matters raised during the hearing and determined that the Agreement did not apply to black coal operations or activities and that clause 9 of the Agreement was not an unlawful term.

The court granted permission to appeal, upheld the appeal and quashed the decision. The application for approval of the Agreement was remitted to Commissioner Gregory for redetermination.

Orders