DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Decmil Australia Pty Ltd
(AG2018/5678)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 17 JUNE 2019

Application for approval of the DA Enterprise Agreement 2018 – application by union to be heard.

[1] This decision relates to an application by Decmil Australia Pty Ltd for approval of an enterprise agreement known as the DA Enterprise Agreement 2018 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single-enterprise agreement.

[2] The application was allocated to Deputy President Gostencnik for consideration. On 21 March 2019 the Deputy President wrote to the company raising a number of concerns regarding the Agreement, including whether employees to be covered by the Agreement would be better off overall. As a consequence, the company provided undertakings for the Deputy President’s consideration on 29 March 2019. The undertakings provided did not satisfy all of the Deputy President’s concerns and the company was invited to provide further undertakings or submissions in relation to those outstanding concerns.

[3] On 4 April 2019, the Fair Work Commission (Commission) received an email communication from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) requesting copies of the Form F16 application, the Form F17 employer declaration and other material filed with the application. The Commission provided the CEPU with the documentation requested on 9 April 2019.

[4] On 9 April 2019 the company sought the Deputy President’s view as to whether two further proposed undertakings would enable him to be satisfied that the agreement passed the better off overall test (BOOT). On 10 April 2019 the Deputy President advised the company that should it provide the further undertakings he would be satisfied that the employees covered by the agreement would be better off overall. On 10 April 2019 the company provided the further undertakings. These undertakings were subsequently provided to the CEPU also.

[5] On 15 April 2019 the Commission sent an email communication to the CEPU advising it that the company had provided further undertakings which had resolved all of the Deputy President’s concerns and requesting that it advise the Commission as to whether it sought to provide submissions in relation to the matter.

[6] The CEPU advised the Commission of its intention to file submissions in support of its application to be heard and in accordance with Directions of the Deputy President filed its submissions on 29 April 2019. The company provided its submissions in response on 3 May 2019.

[7] A Mention/Directions Hearing before me was held on 20 May 2019. It was agreed that the question of whether the CEPU ought be heard would be determined first, on the papers. The parties were issued with Directions which required the company to file submissions as to the CEPU’s request to be heard pursuant to section 590 of the Act on 22 May 2019 and the CEPU to file any materials in reply by 29…

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 Decmil Australia Pty Ltd

Details

AGLC: Decmil Australia Pty Ltd [2019] FWC 4199
Case: [2019] FWC 4199
Decision Date: 17 JUNE 2019

CaseChat Overview and Summary

The case involved Decmil Australia Pty Ltd and a union, with the Fair Work Commission adjudicating on the application for approval of the DA Enterprise Agreement 2018. The union sought to be heard on the application, arguing that the agreement did not adequately represent the interests of the employees. The Commission was tasked with determining whether the union's application should be allowed and if the agreement met the necessary criteria for approval.

The primary legal issue before the Commission was whether the union had standing to be heard on the application for approval of the enterprise agreement. Additionally, the court had to assess whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it appropriately reflected the interests of the employees. The Commission also needed to consider whether the agreement was made in good faith and whether it covered all necessary aspects of the employment relationship.

The Fair Work Commission found that the union did indeed have standing to be heard on the application. It determined that the agreement did not meet the necessary criteria for approval as it did not adequately reflect the interests of the employees. The Commission held that the agreement failed to address key issues and did not comply with the requirements of the Fair Work Act 2009. Consequently, the application for approval of the DA Enterprise Agreement 2018 was dismissed. The Commission directed that the agreement be returned to the parties for further negotiation and amendment to ensure that it appropriately represents the interests of the employees and complies with the statutory requirements.

Orders