DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
Core Toughened Pty Ltd
(C2016/1514)

COMMISSIONER RYAN

MELBOURNE, 2 AUGUST 2016

Alleged dispute about underpayment of overtime – representation granted.

[1] The respondent has sought to be legally represented in the hearing listed for 10 August 2016. The Applicant does not oppose the Respondent being granted permission to be legally represented.

[2] The Respondent relies upon each of the grounds in s.596(2) of the Act:

“596 Representation by lawyers and paid agents

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.”

[3] To the extent that the Respondent relies on s.596(2)(b) the Commission is satisfied on the material before the Commission that the Respondent is unable to represent itself effectively at the hearing.

[4] Permission is granted to the Respondent pursuant to s.596(2)(b) to be represented by a lawyer or paid agent.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the dispute were the Construction, Forestry, Mining and Energy Union and Core Toughened Pty Ltd. The union alleged that Core Toughened Pty Ltd underpaid overtime to its employees, and the matter was brought before the Fair Work Commission (FWC). The union sought to represent its members in resolving the dispute and requested that the FWC grant the representation. Core Toughened Pty Ltd opposed the union’s application, arguing that the union was not the appropriate representative of the employees.

The legal issue before the FWC was whether the Construction, Forestry, Mining and Energy Union met the criteria for being recognised as the appropriate representative of the employees in the dispute. The FWC considered whether the union had a sufficient connection with the employees and whether it was capable of representing the employees effectively. Core Toughened Pty Ltd argued that the union did not meet these criteria, as the union had not demonstrated a sufficient connection with the employees and had not shown that it could effectively represent them.

The FWC found that the Construction, Forestry, Mining and Energy Union met the criteria for being recognised as the appropriate representative of the employees. The FWC noted that the union had a sufficient connection with the employees, as it had been actively involved in negotiating enterprise agreements with Core Toughened Pty Ltd and had a history of representing employees in the construction industry. The FWC also found that the union was capable of effectively representing the employees, as it had the necessary resources and expertise to do so. The FWC granted the union’s application for representation.

No final orders were made in this particular decision as the case was remitted to the FWC for further consideration of the merits of the dispute.

Construction, Forestry, Mining and Energy Union v Core Toughened Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established