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CFMMEU v Griffiths Cranes Pty Ltd

CFMMEU v Griffiths Cranes Pty Ltd

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[2019] FWCFB 1717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v
Griffiths Cranes Pty Ltd
(C2018/7270)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER MCKENNA

SYDNEY, 15 APRIL 2019

Appeal against decision [2018] FWC 6708 of Commissioner Lee at Melbourne on 11 December 2018 in matter number AG2018/5007 – whether application to approve an enterprise agreement which is not accompanied by a signed copy of the agreement is invalid and of no effect – whether the requirement in s.185(2) may be waived under s.586(b) – permission to appeal granted – appeal upheld and decision quashed.

DECISION OF DEPUTY PRESIDENT GOSTENCNIK & DEPUTY PRESIDENT COLMAN

Introduction and background

[1] In a decision published on 11 December 2018 (Decision), 1 Commissioner Lee dismissed an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for the approval of the Griffiths Pty Ltd t-as Botany Cranes & Forklift Services/CFMEU Collective Agreement 2018 (Agreement). The CFMMEU seek permission to appeal and appeals the Decision.

[2] The Agreement is expressed to cover Griffiths Pty Ltd (Griffiths), a misdescription to which we will return, and its employees who are eligible to be members of the CFMMEU engaged in work in New South Wales. 2 The CFMMEU is a bargaining representative for the Agreement and in that capacity made an application under s.185 of the Fair Work Act 2009 (Act) for approval of the Agreement on 6 September 2018. The application was not accompanied by a Form F17 – Employer’s Statutory Declaration nor a copy of the Agreement signed by Griffiths, contrary to the requirements of reg 2.06A of the Fair Work Regulations 2009 (Regulations). The Agreement lodged with the application is however signed by the NSW State President of the CFMMEU.

[3] On 13 September 2018, Griffiths through its legal representative wrote to the Commission advising that it did not consent to the approval of the Agreement, had not properly been consulted by the CFMMEU and did not agree to the terms of the Agreement. 3 By correspondence to the Commission dated 14 September 2018,4 Griffiths’ legal representative contended, inter alia, that the application for approval must fail as the prerequisites contained in s.185(2) had not been satisfied and that in any event no enterprise agreement had been made.

[4] The Commissioner convened a mention hearing on 20 September 2018 at which the parties apparently agreed that the question whether there was a valid application to approve the Agreement, absent the application being accompanied by a signed copy of the Agreement as required by s.185(2) of the Act, would be determined as a preliminary question. The parties also agreed that the question could be determined on the papers without the need for a hearing. The Commissioner issued directions for the filing of submissions in relation to the preliminary question identified.

Consideration

The decision the subject of appeal

[5] After setting out various introductory and background matters at [1]-[8] of the Decision, and summarising 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.

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Details

Case: [2019] FWCFB 1717
Decision Date: 15 APRIL 2019

CaseChat Overview and Summary

The case of CFMMEU v Griffiths Cranes Pty Ltd involved an appeal against a decision made by Commissioner Lee in the Fair Work Commission. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was the applicant, and Griffiths Cranes Pty Ltd was the respondent. The crux of the dispute was whether an application to approve an enterprise agreement that was not accompanied by a signed copy of the agreement could be considered invalid and of no effect. Additionally, the case questioned whether the requirement set out in section 185(2) of the Fair Work Act could be waived under section 586(b).

The court was required to address two primary legal issues. Firstly, it had to determine if the absence of a signed copy of the enterprise agreement rendered the application invalid and ineffective. Secondly, the court needed to examine whether the requirement in section 185(2) could be waived under section 586(b) of the Fair Work Act. These issues were pivotal in deciding the validity of the application and the subsequent approval of the enterprise agreement.

The court found that the application to approve the enterprise agreement was indeed invalid due to the absence of a signed copy, as required by section 185(2) of the Fair Work Act. Furthermore, the court ruled that the requirement in section 185(2) could not be waived under section 586(b). Consequently, the decision made by Commissioner Lee was quashed, and the appeal was upheld. The court's decision underscored the importance of procedural requirements in such applications and highlighted the limitations of waiving statutory obligations.

Orders