DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v
C&H Acquisition Pty Ltd
(C2020/2469)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT SAUNDERS

MELBOURNE, 16 JUNE 2020

Appeal against decision [2020] FWCA 1612 of Commissioner Wilson at Melbourne on 27 March 2020 in matter number AG2019/4028 – whether the effect of accepting an undertaking is not likely to result in substantial changes to an enterprise agreement – whether reconciliation undertaking necessary – permission to appeal granted – appeal dismissed.

[1] By its notice of appeal lodged on 17 April 2020, the Construction, Forestry, Maritime, Mining, and Energy Union (Appellant) seeks permission to appeal and appeals a decision made on 27 March 2020 by Commissioner Wilson to approve a single-enterprise agreement with undertakings¹ (Decision). The agreement is titled the C&H Gencon Enterprise Agreement 2020 (Agreement).

Background

[2] C&H Acquisition Pty Ltd (Respondent) conducts a labour hire business in the building and construction industry. It made the Agreement with the employees covered by it on 11 October 2019. Coverage of the Agreement is governed by clause 4:

“4. Application

a) This Agreement applies to and is binding on the Company in relation to all of its Employees, engaged across Australia, who are covered by the Building and Construction General On-Site Award 2010.

b) For the avoidance of doubt, this Agreement will not apply to:

i. Management;

ii. Professional Staff;

iii. Administrative Staff;

iv. Employees who exceed the high income threshold as defined by the Fair Work Act 2009 (Cth) (‘Act); or

iv. Office based Staff

c) A reference to the “Relevant Award” in this Agreement shall mean the Modern Award, as listed in clause 4(a) that would have applied to an Employee but for this Agreement.”

[3] The Appellant was not a bargaining representative for the Agreement. The Appellant sought to be heard in relation to the application to approve the Agreement. The Commissioner was satisfied that the Appellant had a material interest in the matter and notified the parties that the views of the Appellant would be sought prior to the application for approval of the Agreement being determined. 2

[4] At first instance, the Appellant made submissions in relation to a range of matters, including whether the Agreement passed the better off overall test and whether the group of employees covered by the Agreement was ‘fairly chosen’ within the meaning of s.186(3A) of the Fair Work Act2009 (Cth) (Act). In his initial decision made on 20 March 2020, 3 the Commissioner found that the group of employees covered by the Agreement was not ‘fairly chosen’ because employees who are covered by the Building and Construction General On-Site Award 2010 (Award) but whose remuneration exceeds the high income threshold are not covered by the Agreement. The Commissioner concluded that these high income employees were not geographically, operationally or organisationally distinct.4 The Commissioner then invited the Respondent to provide an undertaking to overcome his ‘fairly chosen’ concern.5…

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: [2020] FWCFB 3134
Decision Date: 16 JUNE 2020

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMU) brought an appeal against a decision of the Fair Work Commission (FWC) regarding an undertaking given by C&H Acquisition Pty Ltd (C&H). The undertaking was related to the potential impact on an enterprise agreement. The appeal was heard in the Federal Court of Australia.

The primary legal issue the court needed to address was whether the acceptance of the undertaking would likely result in substantial changes to the enterprise agreement. Another key issue was whether a reconciliation undertaking was necessary for the FWC to accept the undertaking. The court also considered whether permission to appeal should be granted.

The Federal Court found that the acceptance of the undertaking was unlikely to result in substantial changes to the enterprise agreement. The court concluded that a reconciliation undertaking was not necessary for the FWC to accept the undertaking. The court granted permission to appeal but ultimately dismissed the appeal. The court found that the FWC had not erred in its decision and that the appeal did not present a question of law of general public importance.

The final orders of the court were that the appeal was dismissed, and the decision of the FWC was upheld. The court did not issue any further orders or directions.

Orders