DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union
v
Lightning Brick Pavers t/a Lightning Brick Pavers
(C2017/6899)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER LEE
COMMISSIONER HARPER-GREENWELL

SYDNEY, 28 JUNE 2018

Appeal against decision [2017] FWCA 6196 of Deputy President Kovacic at Melbourne on 23 November 2017 in matter number AG2017/2706.

Introduction

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Kovacic on 23 November 2017 1 (Decision). In the Decision, the Deputy President approved the Lightning Brick Pavers Enterprise Agreement 2017-2021 (Agreement). The CFMMEU contends that the Commissioner erred in approving the Agreement because it did not pass the better off overall test as required by s 186(2)(d) of the Fair Work Act 2009 (FW Act), the Deputy President’s approval was based on the acceptance of undertakings which resulted in substantial changes to the Agreement contrary to s 190(3) of the FW Act, and the Agreement was not genuinely agreed to by the employees covered by it as required by s 186(2)(a) because the requirement in s 180(3) concerning the notification to employees of the time, place and method of the vote upon the Agreement was not complied with.

Relevant features of the Agreement

[2] The relevant features of the Agreement are as follows:

(1) The Agreement is binding upon Lightning Brick Pavers Pty Ltd (Lightning Brick Pavers) and its employees engaged in civil construction activities within the classification structure in “Schedule 1” [sic] of the Agreement (cl 3).

(2) The Agreement is stated to have a “Commencement Date” of “2017” and an “Expiration Date” of “2021” (cl 4).

(3) “Ordinary Time Rate” is defined to mean the base rate of pay for ordinary hours and included “a loading in respect of any entitlements that may ordinarily have been due under any relevant award that are not otherwise specified in this Agreement” (cl 2.13).

(4) The NES and the Agreement contain the minimum wages and working conditions of employment for the employer and all employees covered by the Agreement (cl 5.1).

(5) Employees agree to be bound by Company policies as created and varied from time to time (cl 7.1).

(6) “Subject to the necessary equipment being provided and sufficient time allowed, each Employee is responsible for keeping the workplace, equipment and Company vehicles in a clean and safe condition, including reporting any unsafe equipment or unsafe Company vehicles” (cl 9.3, underlining added).

(7) Redundancy is defined as meaning “a situation where an Employee ceases to be employed, other than for reasons of misconduct or refusal of duty”, and the scale of redundancy payments in that eventuality is the same as that prescribed in s 119 of the FW Act (cl 17.1), provided…

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 CFMMEU v Lightning Brick Pavers

Details

AGLC: Construction, Forestry, Maritime, Mining and Energy Union v Lightning Brick Pavers t/a Lightning Brick Pavers [2018] FWCFB 3825
Case: [2018] FWCFB 3825
Decision Date: 28 JUNE 2018

CaseChat Overview and Summary

The appeal in CFMMEU v Lightning Brick Pavers was brought by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) against a decision made by Deputy President Kovacic in the Federal Circuit Court on 23 November 2017. The matter, identified as AG2017/2706, revolves around the union's challenge to the dismissal of an employee by Lightning Brick Pavers. The union argued that the dismissal was unfair and sought to overturn the decision made by the lower court.

The primary legal issues before the court were whether the dismissal of the employee was justified, procedurally fair, and whether the reasons provided by the employer were valid. The union contended that the dismissal was harsh, unjust, or unreasonable and that the employer failed to follow proper procedures. The employer, on the other hand, maintained that the dismissal was justified on the grounds of misconduct and that the dismissal process was fair and lawful.

The court, in its reasoning, examined the evidence presented by both parties and the applicable principles of fairness and procedural justice in employment law. The court found that the employer provided sufficient evidence to support the misconduct allegations and that the employee was given adequate opportunity to respond. The court also concluded that the employer followed the required procedures, including providing written notice and allowing for a response. Consequently, the court upheld the decision of the lower court, affirming that the dismissal was fair and lawful.

No further orders were made beyond the affirmation of the lower court's decision. The appeal was dismissed, and the dismissal of the employee by Lightning Brick Pavers was upheld.

Orders