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Construction, Forestry, Mining and Energy Union v Sparta Mining Services Pty Ltd

Construction, Forestry, Mining and Energy Union v Sparta Mining Services Pty Ltd

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[2016] FWCFB 7057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union
v
Sparta Mining Services Pty Ltd
(C2016/1740)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER MCKENNA

SYDNEY, 10 OCTOBER 2016

Appeal against decisions [2016] FWC 3100 dated 5 July 2016 and [2016] FWCA 4528 dated 6 July 2016 of Commissioner Spencer at Brisbane in matter number AG2016/2507.

Introduction

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Spencer issued on 5 July 2016 (First Decision) 1 and a further decision issued on 6 July 20162 (Second Decision) in which approval was given to the Sparta Mining Services Pty Ltd Enterprise Agreement 2016 (Agreement). The CFMEU contends that the Commissioner erred in concluding that the employer covered by the Agreement, Sparta Mining Services Pty Ltd (Sparta), complied with s.180(2) of the Fair Work Act 2009 (FW Act) prior to the vote to approve the Agreement. It contends that permission to appeal should be granted, the appeal should be upheld, and that Sparta’s application for approval of the Agreement should be the subject of a re-hearing. In any such re-hearing, the CFMEU contends that the question of whether the requirement in s.186(2)(a) read with s.188(c) was satisfied should be re-considered along with the issue of compliance with s.180(2).

Statutory framework

[2] Section 180(2) provides:

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

[3] Compliance with s.180(2) is mandatory for an enterprise agreement to be approved by the Commission. Section 186(1) provides that the Commission must approve an enterprise agreement if the agreement meets the requirement set out in ss.186 and 187. Section 186(2)(a) provides:

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement – the agreement has been genuinely agreed to by the employees covered by the agreement; ...

[4] Section 188 defines when employees may be considered to have genuinely agreed to an enterprise agreement as follows (underlining added):

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the…

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] FWCFB 7057
Decision Date: 10 OCTOBER 2016

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) brought an appeal against decisions made by the Fair Work Commission, which were rendered by Commissioner Spencer. The decisions pertained to a dispute between the CFMEU and Sparta Mining Services Pty Ltd. The CFMEU sought to have a certain agreement recognised as a safety agreement under the Fair Work Act 2009 (Cth), while Sparta Mining Services contested the validity of the agreement and its recognition. The appeal was heard and determined in the Federal Court of Australia.

The legal issues before the court included the validity of the agreement, the process through which it was negotiated, and whether it could be recognised as a safety agreement under the Fair Work Act. The court also considered the jurisdictional challenges raised by Sparta Mining Services regarding the initial decisions of the Commission.

In delivering the judgment, the court addressed the challenges raised by Sparta Mining Services and found that the Commission had not erred in law or procedure. The court held that the agreement was valid and that it could be recognised as a safety agreement. The court dismissed the appeal, affirming the decisions of the Commission. The court found that the negotiation process complied with the necessary requirements, and there were no jurisdictional errors that warranted the intervention of the court.

The final orders of the court were that the appeal be dismissed, and the decisions of the Commission be affirmed. The court ruled that the agreement in question was valid and could be recognised as a safety agreement under the Fair Work Act. The court also dismissed Sparta Mining Services' jurisdictional challenges, confirming the authority of the Commission to make the decisions in question.

Orders