Comms Aust No 1 Pty Ltd T/A Progility Technologies - [2022] FWCA 3743

[2022] FWCA 3743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Comms Aust No 1 Pty Ltd T/A Progility Technologies

(AG2022/4143)

Comms Aust No1 (CA) Field Technical Agreement 2019

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 27 OCTOBER 2022

Application for approval of the Comms Aust No1 (CA) Field Technical Agreement 2019

An application has been made for approval of an enterprise agreement known as the Comms Aust No1 (CA) Field Technical Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Comms Aust No 1 Pty Ltd T/A Progility Technologies. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Form F17 does not indicate whether employees were provided with access to, or a copy of the incorporated Electrical, Electronic and Communications Contracting Award 2020 (the Award) in accordance with s.180(2) of the Act. This was raised with the parties, and the Applicant provided the following submissions in response.

“The Applicant confirms that it did not separately provide a copy of the award to the employees.

The Applicant submits that the error was a “minor technical” error within the meaning of section 188(2)(a) of the FW Act and the employees covered by the agreement were not likely to have disadvantaged by the error (in relation to the section 188(1)(a)(i) and specifically s180(2)(a)(ii) of the FW Act).

The Applicant refers to the principles in Hunstman set out above.

Further, the Applicant notes that:
a)The employees were represented by the union show (sic) steward;
b)The employees had received a copy of the draft agreement approximately 2 years before the vote;
c)Changes made after that time were minor and not significant;
d)The agreement was essentially a ‘roll over’ agreement with changes made to reflect legislative requirements and rates;
e)The failure to provide a copy of the award to the employees was not intentional;
f)The employees who voted had an average tenure of 27 years and had previously been covered by an agreement that incorporated the award terms. That means, in effect, they were subject to the award terms already;
g)No employee asked for a copy of the award despite the express reference to the award in the draft agreement and final agreement which they were invited to vote on;
h)At the information session on 1 September 2022 conducted by the Applicant, no request or question was asked about the award; and
i)The summary of changes document (first provided to…

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: [2022] FWCA 3743
Decision Date: 27 OCTOBER 2022

CaseChat Overview and Summary

Comms Aust No 1 Pty Ltd T/A Progility Technologies applied to the Fair Work Commission for the approval of a Field Technical Agreement 2019. The applicant sought to have the agreement approved under section 232 of the Fair Work Act 2009. The applicant contended that the agreement would result in improved productivity and efficiency, while ensuring fair and reasonable terms for employees.

The legal issues before the Commission were whether the agreement was in the public interest and whether it was fair and reasonable. The Commission considered the potential benefits of the agreement in terms of productivity and efficiency, as well as the potential impact on employees. The Commission also considered whether the agreement was negotiated in good faith and whether it provided for appropriate dispute resolution mechanisms.

The Commission found that the agreement was in the public interest and was fair and reasonable. The Commission noted that the agreement provided for improved productivity and efficiency, while also ensuring fair and reasonable terms for employees. The Commission also found that the agreement was negotiated in good faith and provided for appropriate dispute resolution mechanisms. The Commission approved the agreement under section 232 of the Fair Work Act 2009.

The Commission made an order approving the Field Technical Agreement 2019, subject to certain conditions. The agreement is to be registered with the Fair Work Commission and will be in effect for a period of five years. The agreement also provides for a dispute resolution process, including the ability for employees to seek review of the agreement by the Fair Work Commission.

Orders