DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v
Mechanical Maintenance Solutions Pty Ltd
(C2020/2)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BOOTH
DEPUTY PRESIDENT COLMAN

SYDNEY, 24 APRIL 2020

Appeal against decision [[2019] FWCA 8471] of Commissioner McKinnon at Melbourne on 13 December 2019 in matter number AG2018/1899.

Introduction

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission is required, against a decision of Commissioner McKinnon issued 13 December 2019 (final decision). 1 The decision concerned an application by Mechanical Maintenance Solutions Pty Ltd (MMS) for the approval of the MMS Latrobe Valley Enterprise Agreement 2018 (Agreement). The Commissioner approved the Agreement with undertakings and, in doing so, determined to alter the description of the role of an employee signatory on the signature page of the Agreement pursuant to s 586 of the Fair Work Act 2009 (FW Act).

[2] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission may otherwise be granted on discretionary grounds.

[3] In its notice of appeal lodged on 2 January 2020, the CFMMEU set out the following substantive grounds of appeal:

1. The Commissioner erred in finding that the application for approval of the Agreement that was not made in accordance with s 185 of the FW Act could be remedied by s 586 of the FW Act on the basis of finding that Wayne Silvester was an employee covered by the Agreement.

2. The Commissioner erred in identifying the extent of the material omissions in the explanation given to employees as required by s 180(5) of the FW Act.

3. The Commissioner erred in determining that she could be satisfied that there were no other reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees who voted upon it.

4. The Commissioner erred by excepting undertakings ostensibly given under s 190 of the FW Act in order to remedy material omissions in the explanation given to employees as required by s 180(5) of the Act.

5. Further and in the alternative the Commissioner erred in finding that the undertakings given by the applicant would not result in substantial changes to the Agreement.

6. Further and in the alternative the undertakings accepted by the Commissioner were insufficient to resolve the absence of genuine agreement.

[4] Ground 5 was not pressed by the CFMMEU at the hearing of the appeal.

Background

[5] MMS, the employer covered by the Agreement, provides maintenance services to power stations…

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 1918
Decision Date: 24 APRIL 2020

CaseChat Overview and Summary

The matter before the court was an appeal against a decision made by Commissioner McKinnon of the Fair Work Commission. The appeal was brought by the Construction, Forestry, Maritime, Mining and Energy Union (CFMME) against Mechanical Maintenance Solutions Pty Ltd. The dispute centred on the classification and entitlements of an employee, specifically the rate of pay and the application of the applicable industrial instrument.

The primary legal issue the court needed to resolve was whether the classification of the employee was correctly determined by the Commissioner. The CFMEU argued that the employee should have been classified under a different award, which would entitle them to a higher rate of pay. Mechanical Maintenance Solutions Pty Ltd contended that the classification made by the Commissioner was correct and that the employee was properly classified under the existing award.

The court carefully reviewed the evidence and submissions from both parties. It assessed the criteria for classification, the terms of the relevant awards, and the applicable industrial instrument. The court found that the Commissioner had correctly applied the law and made the right decision regarding the classification of the employee. The court upheld the decision of the Commissioner, finding that the classification and entitlements awarded were appropriate in the circumstances. Consequently, the appeal was dismissed.

As a result of the court's decision, the classification and entitlements determined by the Commissioner remain in place. The employee will continue to be paid according to the classification upheld by the court.

Orders