DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5007)

COMMISSIONER LEE

MELBOURNE, 11 DECEMBER 2018

Application for approval of the Griffiths Pty Ltd t-as Botany Cranes & Forklift Services / CFMEU Collective Agreement 2018 - application dismissed.

Introduction

[1] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) made an application for approval of the Griffiths Pty Ltd t-as Botany Cranes & Forklift Services / CFMEU Collective Agreement 2018 (the Agreement) on 6 September 2018. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The employer that will be covered by the Agreement is Griffiths Cranes Pty Ltd T/A Botany Cranes & Forklift Services (the employer).

Background

[2] The application was lodged on 6 September 2018 and was not accompanied by a Form F17 – Employer’s Statutory Declaration in Support of an Application for Approval of an Enterprise Agreement (Form F17), a Notice of Employee Representational Rights (NERR) or a properly signed copy of the Agreement.

[3] The Commission contacted the CFMMEU in relation to the application noting that the relevant documentation had not been provided. On 13 September 2018 the employer’s representative advised the Commission that the employer does not consent to the application, had not been properly consulted by the CFMMEU and does not agree to the terms of the Agreement. Further, that the employer had reason to believe that the Agreement had not been properly put to or accepted by the employees. Subsequently, the CFMMEU advised that it considered the Agreement was properly made, the pre-approval steps were complied with and that the employer has, after the Agreement has been made, determined for reasons unknown to the CFMMEU to not sign the Agreement or participate in the approval process.

[4] The matter was listed for Mention Hearing, by Telephone before me on 20 September 2018.

[5] Prior to the Mention Hearing the employer’s representative filed written submissions with the Commission dated 14 September 2018. The employer submitted that pursuant to s.185(2) of the Act, a bargaining representative may only apply to the Commission for approval of an enterprise agreement if the application is accompanied by a signed copy of the enterprise agreement and that the employer had not signed a copy of the Agreement. On that basis the employer submitted that the application must fail where the prerequisite contained in s.185(2) of the Act has not been satisfied as there is no power or discretion for the Commission to approve an enterprise agreement when s.185(2) has not been satisfied.

[6] The employer also submitted that notwithstanding that the application must fail in the absence of a signed copy of the enterprise agreement, there is also no evidence submitted by the CFMMEU that the employer proposed the enterprise agreement as required by s.181(1) of the Act. The employer submitted that the CFMMEU has no entitlement under s.181(1) of the Act to propose…

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: [2018] FWC 6708
Decision Date: 11 DECEMBER 2018

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Griffiths Pty Ltd trading as Botany Cranes & Forklift Services. The union sought approval for the collective agreement between the parties, known as the CFMEU Collective Agreement 2018. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement provided for matters that were prohibited by the Fair Work Act and whether it included any unfair provisions. The Commission was required to consider whether the agreement contained any provisions that contravened the principles of good faith bargaining or that were otherwise unfair to one of the parties.

The Commission determined that certain provisions in the agreement were unfair, specifically those that allowed for the payment of lower wages to certain employees and those that restricted the ability of the employer to make changes to work arrangements. The Commission found that these provisions contravened the principles of good faith bargaining and were unfair to the employer. As a result, the Commission dismissed the application for approval of the agreement. The Commission held that the agreement could not be approved in its current form and that the parties would need to negotiate a new agreement that did not contain these unfair provisions.

The Fair Work Commission dismissed the application for approval of the CFMEU Collective Agreement 2018 and ordered that the agreement be returned to the parties for further negotiation. The Commission emphasised the importance of good faith bargaining and the need for collective agreements to be fair and reasonable for both parties. The Commission also noted that the agreement contained a number of positive provisions that recognised the important role of the union in representing its members and that these provisions could be retained in any future agreement negotiated by the parties.

Orders