Construction, Forestry, Mining and Energy Union v Solwest Constructions Pty Ltd
[2013] FWCFB 4911
•23 JULY 2013
[2013] FWCFB 4911 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Solwest Constructions Pty Ltd
(C2013/4730)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 23 JULY 2013 |
Appeal against decision [2013] FWCA 3197 of Deputy President McCarthy at Perth on 21 May 2013 in matter number AG2013/1002.
[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has given notice of appeal against a decision 1 of Deputy President McCarthy approving the Solwest Constructions Pty Ltd Second Tier Sites Enterprise Agreement 2013 (Solwest Agreement).2
[2] Solwest Constructions Pty Ltd, the respondent to the appeal, has filed the following submissions in respect of the appeal:
“1. The respondent accepts that the appellant has standing to bring the appeal, having been a bargaining representative for the Agreement and having been actively involved in negotiations with the respondent.
2. The respondent also accepts that whereas:
(a) on or about 26 April 2013 the application for approval of the Agreement was listed on the Commission’s website; and
(b) on 7 May 2013 the respondent served the application, Form 17 and the Agreement on the appellant by email and notified the learned Deputy President by email that service had been effected (see attached emails);
no notice of the hearing or that the matter would proceed by way of e-hearing was issued or placed on the Commission’s website at any time prior to the Agreement being approved on 21 May 2013.
3. The respondent further accepts that, by reason of the respondent failing to complete paragraph 2.7 of Form 17, there was not sufficient material before the learned Deputy President upon which he could be satisfied that s 180(5) of the Fair Work Act 2009 was complied with.
4. Further, the respondent concedes that were the matter to be remitted to the learned Deputy President for further consideration, the respondent would not be able to satisfy his Honour that s 180(5) of the Act was adequately complied with.
5. Accordingly, in the circumstances, the respondent accepts that the appropriate course is that the appellant have permission to appeal, the appeal be allowed (on the basis of the first ground of appeal), the decision to approve the agreement be quashed and the application for approval be dismissed.
6. In the circumstances, the respondent submits that in accordance with s 607(1) of the Act, the appeal may be adequately determined by the Full Bench without a hearing.
7. The appellant and the respondent have conferred and are agreed that if the above course is acceptable to the Full Bench, it is not necessary for the Full Bench to consider the appellant’s second ground of appeal, as to which neither party makes any concessions.”
[3] It appears to us that the appeal by the CFMEU can be adequately determined without persons making oral submissions for consideration in the appeal. Further, the persons who would otherwise, or who will, make submissions for consideration in the appeal consent to the appeal being heard without a hearing. Accordingly, we have decided to hear the appeal without holding a hearing. 3
[4] In the circumstances, we are satisfied we should grant the CFMEU permission to appeal, quash the decision of Deputy President McCarthy approving the Solwest Agreement and dismiss the application 4 for approval of the Solwest Agreement. We do so. An order to that effect is being issued at the same time as this decision.5
SENIOR DEPUTY PRESIDENT
1 Re Solwest Constructions Pty Ltd Second Tier Sites Enterprise Agreement 2013,[2013] FWCA 3197.
2 AE401368.
3 Fair Work Act 2009 (Cth), s.607(1).
4 AG2013/1002.
5 Construction, Forestry, Mining and Energy Union v Solwest Constructions Pty Ltd, PR539193.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR539192>