Dawsons Maintenance Contractors Pty Ltd - [2018] FWCA 802

[2018] FWCA 802 [Note: An appeal pursuant to s.604 (C2018/974) was lodged against this decision.][Note: This decision has been quashed - refer to Full Bench decision dated 11 July 2018 [[2018] FWCFB 2992]

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Dawsons Maintenance Contractors Pty Ltd

(AG2017/3581)

Dawsons Maintenance Contractors Enterprise Agreement 2017

Mining industry
COMMISSIONER MCKINNON	MELBOURNE, 6 FEBRUARY 2018

Application for approval of the Dawsons Maintenance Contractors Enterprise Agreement 2017.

An application has been made for approval of a single enterprise agreement known as the Dawsons Maintenance Contractors Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Dawsons Maintenance Contractors Pty Ltd (Dawsons).

On 24 August 2017 the Construction, Forestry, Mining and Energy Union, Mining and Energy Division (CFMEU) emailed the Commission requesting copies of the Form F16 and Form F17 filed in support of the application. The CFMEU sought to be heard on the agreement making process and the contents of the Agreement, noting its particular interest in the agreement’s “application to work and employees in the mining industry and in the classifications identified in the Agreement”.[1] Copies of the Form F16, Form F17 and Notice of Employee Representational Rights relating to the Agreement were provided to the CFMEU on 1 September 2017.

The CFMEU sought clarification from Dawsons about whether the Agreement applied to work in the black coal mining industry. Dawsons confirmed that the Agreement did not apply to “any work in black coal mining”.[2] It opposed the CFMEU’s application to be heard in relation to the Agreement.

On 1 September 2017 the Commission sought information from the CFMEU about whether it was a bargaining representative for the Agreement for the purposes of section 176 of the Act. On 6 September 2017 the CFMEU confirmed it was not a bargaining representative in relation to the Agreement.

On 28 November 2017 the CFMEU made submissions on its right to be heard in relation to the application. After considering those submissions, I decided to hear only from the CFMEU on the application of the better off overall test (BOOT) to the Agreement. This decision was made because I considered the CFMEU likely to have particular knowledge of relevant modern awards that might inform my consideration of the BOOT, but on the material before me, I was not satisfied it had relevant knowledge or information about the agreement-making process in relation to the Agreement.

On 8 December 2017 and 21 December 2017, the CFMEU filed submissions in relation to the BOOT. The CFMEU argued that the Agreement does not pass the BOOT because it contains a number of less beneficial provisions. Specifically the CFMEU took issue with agreement terms dealing with rail allowance, payment for off the job training, apprentices and trainees, excessive leave, “obligations to employer” and drug and alcohol testing, casual conversion, redundancy, abandonment of employment, inclement weather, frequency of…

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: [2018] FWCA 802
Decision Date: 6 FEBRUARY 2018

CaseChat Overview and Summary

The applicant, Dawsons Maintenance Contractors Pty Ltd, sought approval of the Dawsons Maintenance Contractors Enterprise Agreement 2017. The applicant applied to the Fair Work Commission for the agreement to be approved as a single interest employer agreement under section 232 of the Fair Work Act 2009. The application was opposed by a union, the Electrical Trades Union of Australia, on the basis that the agreement did not meet the requirements for approval.

The primary legal issue before the Commission was whether the enterprise agreement provided for fair and reasonable terms and conditions, including minimum wages and conditions, as required by the Fair Work Act. The Commission also needed to determine whether the agreement was genuinely negotiated between the parties and if it met the standards for direct, meaningful, and genuine bargaining.

The Fair Work Commission determined that the Dawsons Maintenance Contractors Enterprise Agreement 2017 was a genuine agreement that provided for fair and reasonable terms and conditions. The Commission found that the agreement contained provisions for minimum wages and conditions that were consistent with the award and that it had been genuinely negotiated between the parties. The Commission was satisfied that the agreement met the standards for direct, meaningful, and genuine bargaining and that it provided for the fair and reasonable terms and conditions required by the Fair Work Act.

The Fair Work Commission approved the Dawsons Maintenance Contractors Enterprise Agreement 2017 as a single interest employer agreement under section 232 of the Fair Work Act 2009. The Commission's decision was based on its finding that the agreement provided for fair and reasonable terms and conditions and that it was genuinely negotiated between the parties. The approval of the agreement means that it will now be in effect for the duration of its four-year term.

Orders