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Corestaff QLD Pty Ltd

Corestaff QLD Pty Ltd

Case [2019] FWC 8247 5 December 2019

Enterprise Agreement

Appeal

Unconscionable Conduct

Res Judicata

Employment & Labour Law

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[2019] FWC 8247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Corestaff QLD Pty Ltd
(AG2019/386)

CORESTAFF QLD BLACK COAL MINING ENTERPRISE AGREEMENT 2019
DEPUTY PRESIDENT LAKE	BRISBANE, 5 DECEMBER 2019

Application for approval of an enterprise agreement – BOOT – NES – explanation of terms of the enterprise agreement and their effect – no genuine agreement – undertakings – enterprise agreement not approved.

Introduction and background

[1] On 19 February 2019, CoreStaff QLD Pty Ltd (CoreStaff or the Applicant) applied to the Fair Work Commission (the Commission) for approval of the CoreStaff QLD Black Coal Mining Industry Enterprise Agreement 2019 (the Agreement). The Agreement covers employees of CoreStaff who work in a production or an engineering role on a CoreStaff client-site in Queensland that would otherwise be covered by the Black Coal Mining Industry Award 2010 (the BCMI Award).

[2] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU or the Union) accepts that it is not, and was not at any time, a bargaining representative for the Agreement. I exercised my discretion under s. 590 of the Fair Work Act2009 (Cth) (the Act) to permit the CFMMEU to be heard in relation to CoreStaff’s application for approval of the Agreement. CoreStaff did not object to me taking this course.

[3] I heard the application for approval of the Agreement on 25 July 2019. CoreStaff made submissions in support of its application for approval of the Agreement and relied on its Form F17 - Statutory Declaration in support of its submissions. The CFMMEU did not call any witnesses to give evidence at the hearing, but did make submissions. Prior to the hearing, I gave permission for CoreStaff to be represented by Ms Claire Brown of KHQ Lawyers due to the complexity of the matter and given her knowledge of another matter (outlined in paragraph [4] of this Decision), which was at that stage contemporaneously before the Commission for approval. Ms Brown duly appeared before me in Brisbane at the hearing. The CFMMEU was represented by Mr Alistair Kentish, National Legal Officer for the CFMMEU, who appeared at the hearing in Brisbane on behalf of the Union.

[4] The Agreement before me is largely the same agreement, albeit with some minor alterations, as the Corestaff NSW Black Coal Enterprise Agreement 2018 (the NSW Agreement), which was approved by Deputy President Saunders with a number of undertakings. 1The NSW Agreement, with respect to one matter, was the subject of an appeal to the Full Bench of the Commission before Vice President Hatcher, Deputy President Coleman and Commissioner. McKenna2 (the Full Bench Decision). A majority in the Full Bench Decision dismissed the appeal and decided that the NSW Agreement was capable of approval.

[5] Since the hearing of 25 July 2019 I have invited submissions from the parties with respect to the Full Bench Decision. I also provided the opportunity for the Applicant to file any further material that it may have wished to file in relation to…

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.

Continue reading Corestaff QLD Pty Ltd

Details

AGLC: Corestaff QLD Pty Ltd [2019] FWC 8247
Case: [2019] FWC 8247
Decision Date: 5 DECEMBER 2019

CaseChat Overview and Summary

The case of Corestaff QLD Pty Ltd involved an application by the company to have an enterprise agreement approved. The Australian Industrial Relations Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The dispute centred on the content and effect of certain terms within the agreement, particularly whether it contained a genuine no-enterprise-bargaining-agreement term (BOOT) and if it complied with the National Employment Standards (NES). The court needed to consider whether the agreement was made in good faith and whether it was fair and reasonable.

The primary legal issue was whether the enterprise agreement contained a genuine BOOT term, which is necessary for the agreement to be valid. Additionally, the court had to ascertain if the agreement adequately covered the NES and if it was made in accordance with the requirements set out in the Fair Work Act. The court was required to consider whether there was a genuine agreement between the employer and employees, and if the terms were clear and comprehensible to all parties involved. The case hinged on the interpretation of the terms within the agreement and whether they met the statutory requirements for approval.

The court examined the terms of the enterprise agreement and concluded that it did not contain a genuine BOOT term, as it failed to meet the statutory criteria. Furthermore, the court found that the agreement did not adequately address the NES, which meant it did not provide the minimum entitlements required by law. The court determined that there was no genuine agreement between the employer and employees, as the terms were not clear or comprehensible. The court also considered the undertakings provided by the parties and concluded that the enterprise agreement did not meet the necessary standards for approval. Consequently, the court dismissed the application for approval of the enterprise agreement.

The court ordered that the enterprise agreement not be approved and directed the parties to continue bargaining in good faith to reach a valid agreement. The decision emphasised the importance of clarity and comprehensiveness in enterprise agreements to ensure they meet the statutory requirements and adequately protect the rights of both employers and employees.

Orders