Construction, Forestry, Maritime, Mining and Energy Union v A1 Earthworx Mining & Civil Pty Ltd
[2019] FWCFB 5836
•22 AUGUST 2019
| [2019] FWCFB 5836 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union
v
A1 Earthworx Mining & Civil Pty Ltd
(C2019/4390)
VICE PRESIDENT HATCHER | SYDNEY, 22 AUGUST 2019 |
Appeal against decision [2019] FWCA 4497 of Deputy President Bull at Sydney on 27 June 2019 in matter number AG2019/1196.
[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 21 August 2019.
[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has filed an appeal under s 604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision issued by Deputy President Bull on 27 June 2019 1 to approve the A1 Earthworx Mining and Civil Pty Ltd and Employees Enterprise Agreement 2019-20232(Agreement). The CFMMEU’s notice of appeal, as pressed at the hearing, contends that the Deputy President erred in approving the Agreement in four respects:
(1) The Deputy President could not be satisfied that the Agreement passed the better off overall test (BOOT) approval requirement in s 186(2)(d) of the FW Act at least in respect of one of the reference awards, the Building and Construction General On-Site Award 2010 (Building Award).
(2) The Deputy President could not be satisfied as to the approval requirement for genuine agreement in s 186(2)(a), as explicated in s 188(1), because the information in the employer’s Form F17 statutory declaration demonstrated that there had been no explanation provided to employees of the terms of the final draft of the Agreement upon which they voted.
(3) The Deputy President also could not be satisfied as to the genuine agreement requirement because the material before the Commission was incapable of demonstrating that all the employees who voted to approve the Agreement were employed at the time of the vote in accordance with ss 181(1) and 182(1). In this respect, the CFMMEU pointed to the Form F17 statutory declaration, which stated that of the 54 employees who were said to have been employed at the relevant time, 20 were casual employees.
(4) The Deputy President could further not be satisfied in relation to the genuine agreement requirement, because the NERR was defective (having been printed on the respondent’s letterhead) and he had not applied s 188(2) in relation to this error.
[3] It may be noted that an internal analysis of the Agreement prepared prior to the Decision being issued, which we presume the Deputy President had access to, indicated that the Agreement did not pass the BOOT in respect of the Building Award and there was a concern about compliance with s 180(5). It also identified other concerns with respect to the capacity of the Commission to approve the Agreement under the FW Act. However the record of the proceedings below does not indicate that the Deputy President raised any of these concerns with the applicant for approval of the Agreement, A1 Earthworx Mining and Civil Pty Ltd (Earthworx), for response or to seek an appropriate undertaking. Nor did the Decision address any of the issues raised by the analysis. It simply records that the Deputy President was satisfied that the requirements of ss 186, 187 and 188 of the FW Act, as relevant to the application, were met.
[4] Earthworx opposed the grant of permission to appeal. However it conceded that the Agreement, according to its terms, did not pass the BOOT in respect of the Building Award. Having regard to modelling prepared by the CFMMEU in its appeal submissions concerning the BOOT, and the Commission’s internal analysis, we consider that this concession was properly made. It is clear, having regard at least to the fact that the Agreement provides for 40 ordinary hours of work per week (rather than 38 hours) and does not provide for an overtime meal allowance, that the Agreement does not pass the BOOT with respect to the Building Award when modelled for 50 hours’ work in a week (which Earthworx accepted was a realistic working scenario).
[5] Accordingly we consider that the Agreement did not pass the BOOT approval requirement in s 186(2)(d), and the Deputy President erred in concluding otherwise. This is an error of a nature which attracts the public interest, and accordingly permission to appeal must be granted in accordance with s 604(2). In the circumstances it is unnecessary for us to determine the other appeal grounds. We consider that the appeal must be upheld on the BOOT point and the Decision must be quashed. It will be necessary for the application for approval of the Agreement to be re-determined, and we will remit the matter to the Deputy President for this purpose. In re-determining the matter, the Deputy President should consider, in addition to the BOOT approval requirement, the second and third appeal contentions identified above and the remaining issues identified in the Commission’s internal analysis.
[6] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2019] FWCA 4497) is quashed.
(4) The application for approval of the Agreement (AG2019/1196) is remitted to Deputy President Bull for re-determination.
(5) The Deputy President is directed to consider:
(i) the BOOT approval requirement in s 186(2) (and any undertakings that might be proposed in that connection);
(ii) the matters raised in the CFMMEU’s second and third appeal contentions set out above; and
(iii) the remaining concerns identified in the Commission’s internal analysis of the Agreement prepared on 4 June 2019.
VICE PRESIDENT
Appearances:
Ms E Barnes-Whelan on behalf of the Construction, Forestry, Maritime, Mining and Energy Union
Ms L Rooke on behalf of A1 Earthworx Mining & Civil Pty Ltd
Hearing details:
2019.
Sydney:
21 August.
Printed by authority of the Commonwealth Government Printer
<PR711579>
1 [2019] FWCA 4497
2 AE504182
0