REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/7083)

COMMISSIONER LEE

MELBOURNE, 25 FEBRUARY 2016

Application for approval of the Brownfield’s Contracting Pty Ltd / CFMEU Collective Agreement 2015-2018 – application dismissed.

[1] The Construction, Forestry, Mining and Energy Union (the Applicant) made an application for approval of the Brownfield’s Contracting Pty Ltd / CFMEU Collective Agreement 2015-2018 (the Agreement) on 18 December 2015. The application was allocated to me for consideration.

[2] The application was the subject of a telephone hearing on 8 February 2016. The hearing was held as the application was not accompanied by a Form F17 – Employer’s Statutory Declaration in Support of an Application for Approval of an Enterprise Agreement (Form F17) including the Notice of Employee Representational Rights (NERR) given to employees or a properly signed copy of the Agreement. Ms Charlson appeared on behalf of the Applicant and Mr Lombardi appeared on behalf of Brownfield’s Contracting Pty Ltd (the employer).

[3] At the conclusion of the hearing, I dismissed the application for approval of the Agreement. In doing so I stated that I was unable to approve the Agreement as the application was not accompanied by a properly signed copy of the Agreement, that is, the employer has not signed a copy of the Agreement.

[4] Section 186(1) of the Fair Work Act 2009 (the Act) provides as follows:

“(1) If an application for the approval of an enterprise agreement is made under subsection 182 (4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).”

[5] Section 185 deals with applications for approval of enterprise agreements. Relevantly it provides at s.185(2) that the application must be accompanied by a signed copy of the Agreement.

[6] Section 185(5) provides that the regulations may prescribe requirements relating to the signing of enterprise agreements. Regulation 2.06A(2) specifies what constitutes a signed Agreement for the purposes of s.185(2)(a). Regulation 2.06A is in the following terms:

“2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative…

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: [2016] FWC 980
Decision Date: 25 FEBRUARY 2016

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for approval of a collective agreement between Brownfield’s Contracting Pty Ltd and the union for the period 2015-2018. The application was dismissed by the Commission on the basis that the agreement contained provisions which were not in accordance with the Fair Work Act. The union appealed the dismissal of the application to the Federal Court.

The central issue before the court was whether the Fair Work Commission erred in law in refusing to approve the collective agreement. Specifically, the court needed to determine whether certain provisions in the agreement were inconsistent with the provisions of the Fair Work Act. The court also needed to consider whether the Commission's reasons for refusing to approve the agreement were valid and whether the Commission had considered all relevant matters.

The court found that the Fair Work Commission had not erred in law in refusing to approve the collective agreement. The court held that certain provisions in the agreement were inconsistent with the Fair Work Act and that the Commission had correctly refused to approve the agreement. The court found that the Commission had considered all relevant matters and had provided valid reasons for refusing to approve the agreement. The court dismissed the appeal and upheld the decision of the Commission.

The court did not make any orders as the appeal was dismissed. The collective agreement between Brownfield’s Contracting Pty Ltd and the Construction, Forestry, Mining and Energy Union for the period 2015-2018 remains disapproved.

Orders