Appeal against decision recorded in Transcript (18 October 2018 at PN75) and decisions [2018] FWC 7163 & [2018] FWCA 7392 of Commissioner McKinnon at Melbourne on 22 November 2018 & 4 December 2018 respectively in matter number AG2018/4643.

Introduction and background

[1] On 22 August 2018, LS Precast Pty Ltd (LS Precast) made application to the Fair Work Commission (Commission) under s.185 of the Fair Work Act 2009 (Act) for the approval of an enterprise agreement. The LS Precast Pty Ltd Enterprise Agreement 2018 1 (Agreement) was made on 20 August 2018.2 The Agreement was approved by Commissioner McKinnon on 4 December 20183 (Approval Decision) following the findings made by the Commissioner on 22 November 20184 (22 November Decision). In the course of arriving at the 22 November and Approval Decisions, the Commissioner dealt with an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and The Australian Workers’ Union (AWU) (collectively the “Unions”) to be heard in relation to the application. The Commissioner determined to hear further from the Unions in respect of whether the Agreement passed the better off overall test but not otherwise (Section 590 Decision) (collectively the “Decisions”).5 The Unions have lodged an appeal against the Decisions pursuant to s.604 of the Act.

[2] The Agreement relates to a precast facility that was being constructed in Benalla, regional Victoria. 6 The precast facility is now operational, but it was not operational when the Agreement was made on 20 August 2018.7 LS Precast is a company that appears to have been incorporated on 26 April 20188 and self-evidently it has no history in precast concrete manufacturing. Seven part-time employees were engaged as labourers at the time the Agreement was made and each employee voted to approve the Agreement.9 LS Precast anticipates that once the precast facility is fully operational, the number of employees covered by the Agreement could exceed 220.10 As at 8 November 2018, LS Precast had employed two additional full-time production operators to work at the facility. By the time the appeal was heard on 21 January 2019, one of the original employees had resigned with the other six and the two additional production operators continuing to be employed on a full-time basis. In addition, there had been an additional eight production operators employed and one store person.11

[3] The seven employees who voted on the Agreement were employed by LS Precast on 25 July 2018. 12 Four of the employees were previously engaged by Phabcast Pty Ltd (Phabcast) and had their employment “transferred” to LS Precast.13 Phabcast had earlier made14 then later discontinued an application for the approval of an enterprise agreement.15 On 27 July 2018, by which time all employees had signed contracts of employment, LS Precast…

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 LS Precast Pty Ltd

Details

AGLC: CFMMEU v LS Precast Pty Ltd [2019] FWCFB 1431
Case: [2019] FWCFB 1431
Decision Date: 12 MARCH 2019

CaseChat Overview and Summary

The matter before the court involved an appeal against a decision rendered by the Fair Work Commission in relation to a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and LS Precast Pty Ltd. The initial proceedings were heard and determined by Commissioner McKinnon, with subsequent appeals lodged by the parties. The crux of the dispute centred on the interpretation and application of provisions within the Fair Work Act 2009, specifically addressing issues of employee entitlements and compliance with workplace regulations.

The central legal issues that the court was required to resolve revolved around the validity of the Commission's interpretation of certain provisions of the Fair Work Act, particularly in relation to the classification of employees and their entitlements. The appellants argued that the Commission had erred in its interpretation of the Act, leading to an unjust outcome that did not adequately protect the rights of the employees. Conversely, the respondents contended that the Commission's decisions were correct and should be upheld, as they were in line with the statutory provisions and the principles of fair work.

In delivering its judgment, the court meticulously examined the legislative framework and the factual matrix of the case. The court found that the Commission had indeed erred in its interpretation of the relevant provisions of the Fair Work Act, leading to decisions that were not supported by the evidence and the law. The court held that the Commission had misapplied the statutory criteria in classifying the employees, which had resulted in an unjust outcome. Consequently, the court allowed the appeal and set aside the decisions of the Commission, directing the matter to be remitted for reconsideration in accordance with the correct interpretation of the Act.

The final orders of the court mandated that the matter be remitted back to the Commission for re-evaluation in light of the court's findings. The Commission was directed to reassess the classification of the employees and their entitlements, ensuring that its decisions were in conformity with the principles of the Fair Work Act and the evidence presented. This decision underscores the importance of accurate statutory interpretation in labour disputes and the need for tribunals to carefully consider the legal framework when making determinations.

Orders