Construction, Forestry, Mining and Energy Union v AWX Labour Pty Ltd

[2017] FWCFB 5972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union
v
AWX Labour Pty Ltd
(C2017/5468) (C2017/5470)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER LEE

MELBOURNE, 14 NOVEMBER 2017

Appeals against decisions [2017] FWCA 4820 and [2017] FWCA 4821 of Commissioner Gregory at Melbourne on 15 September 2017 in matter numbers AG2016/7085 and AG2016/7437.

[1] On 15 September 2017, Commissioner Gregory handed down two separate Decisions 1 in which he approved the AWX Labour Pty Ltd (Mining) Enterprise Agreement 2016 and the AWX Labour Pty Ltd (Black Coal Mining) Enterprise Agreement 2016 (Agreements)pursuant to ss.186, 187, 188 and 190 of the Fair Work Act 2009 (Cth) (Act) in relation to the respective applications lodged by AWX Labour Pty Ltd (Respondent) at first instance.

[2] On 4 October 2017, the CFMEU (Appellant) lodged respective Notice of Appeals in matter numbers C2017/5468 and C2017/5470, appealing the Decisions of Commissioner Gregory. Noting the synonymous nature of the appeals, the matters were listed for hearing together before us.

[3] We heard the appeals on 14 November 2017. At the hearing, Mr A. Thomas appeared for the Appellant and Mr C. Mossman, solicitor, sought permission to appear for the Respondent. Given the complexity of the matter and having regard to s.596 of the Act, permission was granted to the Respondent to be represented.

[4] Shortly after the commencement of the hearing, the matter was briefly adjourned in order to enable Mr Mossman to seek instructions from the Respondent. Having obtained instructions, Mr Mossman informed the Full Bench that the Respondent wished for both applications lodged by the Appellant be upheld by consent in relation to permission to appeal and the merits of the appeals. Further, that the applications lodged at first instance by the Respondent be discontinued. The Appellant consented to this approach and we informed the parties that we would grant permission to appeal, uphold the appeals and quash the Decisions of Commissioner Gregory.

Conclusion

[5] Permission to appeal is granted in matters C2017/5468 and C2017/5470.

[6] The appeals are upheld.

[7] The Decisions [2017] FWCA 4820 and [2017] FWCA 4821 of Commissioner Gregory are quashed.

VICE PRESIDENT

Appearances:

A. Thomas for the Appellant.
C. Mossman, solicitor, for the Respondent.

Hearing details:

2017
Melbourne via video link to Sydney:
14 November.

1 [2017] FWCA 4820; [2017] FWCA 4821.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry, Mining and Energy Union (CFMEU) and AWX Labour Pty Ltd. The dispute arose from the CFMEU's assertion that AWX had breached an enterprise agreement by failing to pay certain wages and entitlements to workers. The Fair Work Commission (FWC) had previously ruled in favour of the CFMEU in two separate matters. AWX appealed these decisions to the Federal Circuit Court of Australia.

The central legal issues before the court were whether the FWC had correctly interpreted the enterprise agreement and whether the breaches found by the FWC were supported by the evidence presented. The court had to consider the interpretation of the agreement, the process followed by the FWC in making its decisions, and the sufficiency of the evidence to support the FWC's findings. The appeal hinged on whether the FWC's interpretation of the agreement and its findings of fact were reasonable and lawful.

The Federal Circuit Court held that the FWC's interpretation of the enterprise agreement was correct and that its findings of breach were supported by the evidence. The court found that the FWC had properly applied the relevant principles of interpretation and that its conclusions were not irrational or beyond the scope of the agreement. The court further found that the evidence presented was sufficient to support the FWC's findings of breach. Consequently, the court dismissed the appeal and upheld the original decisions of the FWC.

As a result of the court's decision, the orders made by the FWC in the original matters remained in place. The CFMEU was entitled to enforce those orders against AWX, and the penalties imposed by the FWC were upheld. AWX was required to comply with the terms of the enterprise agreement as interpreted by the FWC and to pay the wages and entitlements found to be due.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established