DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union and others
v
Specialist People Pty Ltd
(C2019/3597, C2019/3600, C2019/3601)

Manufacturing and associated industries
VICE PRESIDENT HATCHER DEPUTY PRESIDENT COLMAN COMMISSIONER LEE	SYDNEY, 20 NOVEMBER 2019

Application for approval of an enterprise agreement under s 185 on rehearing

Introduction

[1] This decision concerns an application made by Specialist People Pty Ltd (Specialist People) under s 185 of the Fair Work Act 2009 (FW Act) for the Commission to approve the Specialist People Enterprise Agreement 2018 (Agreement) upon rehearing of the application. The background is as follows.

[2] The application was initially approved by Deputy President Beaumont in a decision issued on 22 May 2019. 1 The Deputy President concluded that the Agreement met the various approval requirements in the FW Act, including that it passed the “better off overall test” (BOOT), and approved the Agreement subject to twelve undertakings.

[3] Appeals from this decision were brought by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the Australian Workers’ Union (AWU), the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[4] The appellant unions contended that the Deputy President did not properly assess whether the Agreement passed the BOOT because she compared its terms only with the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), which the company had contended was the only relevant award. The unions submitted that the Deputy President failed to consider whether the Agreement passed the BOOT against other relevant awards, namely the Building and Construction General On-Site Award 2010 (Building and Construction Award), the Hydrocarbons Industry (Upstream) Award 2010 (Hydrocarbons Award), and the Electrical, Electronic and Communications Contracting Award 2010 (Electrical Contracting Award) (the additional awards). This appeal ground proceeded on the basis of the unions’ interpretation of the scope of the Agreement, which they said was not confined to work covered by the Manufacturing Award, as the company had contended, but extended to work covered by the additional awards.

[5] A second appeal ground was that the Deputy President could not have been satisfied that Specialist People took all reasonable steps to explain the terms of the Agreement and their effect as required by s 180(5), with the result that the Agreement was not genuinely agreed to as required by s 186(2)(a). In this respect, the appellant unions submitted that the company’s explanation of the terms was contained in a single table summarising the import of some clauses, and that it did not address the range of classifications that the Agreement covers, the roster patterns that would be worked, or the range of modern awards that would otherwise cover the work in question and the relevant benefits that would be provided under the Agreement.

[6] The competing contentions concerning the scope of the Agreement focused on clause 2, which states that the Agreement applies…

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 7919
Decision Date: 20 NOVEMBER 2019

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied for approval of an enterprise agreement between itself and Specialist People Pty Ltd, a company that employs truck drivers. The dispute involved the terms and conditions of employment, including wages, working hours, and other employment-related matters. The Commission, on rehearing the matter, was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The primary legal issue before the Commission was whether the agreement complied with the provisions of the Fair Work Act, particularly section 185, which sets out the criteria for the approval of an enterprise agreement.

The Commission examined the agreement in light of the statutory criteria, considering factors such as whether the agreement provided for fair and reasonable terms and conditions, whether it was free from coercion and undue influence, and whether it was made in good faith. The Commission also took into account the submissions made by the parties and any relevant evidence presented during the hearing. In reaching its decision, the Commission weighed the need to balance the interests of the employees, represented by the CFMMEU, with the legitimate interests of the employer, Specialist People Pty Ltd.

After carefully considering the arguments and evidence presented, the Commission concluded that the agreement met the statutory requirements for approval. The Commission found that the agreement provided for fair and reasonable terms and conditions of employment and was made in good faith. The Commission also determined that the agreement was not made under coercion or undue influence. Consequently, the Commission approved the enterprise agreement, recognising it as a valid and binding agreement between the CFMMEU and Specialist People Pty Ltd. The approval of the agreement ensures that the terms and conditions of employment for the truck drivers employed by Specialist People Pty Ltd are governed by the agreed-upon provisions, providing a framework for their working conditions and rights.

Orders