Construction, Forestry, Mining and Energy Union v Solwest Constructions Pty Ltd

[2013] FWCFB 4911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Mining and Energy Union
v
Solwest Constructions Pty Ltd
(C2013/4730)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT SAMS
COMMISSIONER MACDONALD

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

CaseChat Overview and Summary

The appeal before the Full Court was brought by the Construction, Forestry, Mining and Energy Union (CFMEU) against the decision of Deputy President McCarthy in the Fair Work Commission (FWC). The original dispute arose from a termination of employment by Solwest Constructions Pty Ltd (Solwest) of one of its employees, who was a member of the CFMEU. The CFMEU contended that the termination was unfair and sought relief on behalf of the employee. The matter was initially heard and determined by Deputy President McCarthy, who found in favour of Solwest. The CFMEU then appealed this decision to the Full Court.

The legal issues before the Full Court related to whether the termination of the employee was genuinely based on the reasons provided by Solwest, and whether the termination process was fair. The court had to consider the evidence presented by both parties and determine if the employee's dismissal was consistent with the terms of the applicable enterprise agreement and the principles of natural justice and procedural fairness. Additionally, the court had to assess the weight and credibility of the evidence provided by Solwest and the CFMEU.

The Full Court, after reviewing the evidence and arguments, concluded that Deputy President McCarthy's decision was correct. The court found that the reasons provided by Solwest for the termination were genuine and the process followed was fair. The evidence supported Solwest's position that the termination was due to a lack of competence and capability of the employee to perform the required duties. The Full Court also found that the process adhered to the requirements of natural justice and procedural fairness. Consequently, the appeal was dismissed.

The Full Court's decision upheld the original determination by Deputy President McCarthy, affirming that the termination of employment was lawful and appropriate. The court found no merit in the CFMEU's arguments and therefore no orders were made in favour of the CFMEU. The decision reinforced the importance of employers following proper procedures and providing valid reasons when terminating employees, while also recognising the employer's right to manage its business.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established