DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Downer EDI Engineering Electrical Pty Ltd T/A Downer EDI Engineering
(AG2016/1270)

COMMISSIONER SPENCER

BRISBANE, 31 AUGUST 2016

Application for approval of an enterprise agreement – s.586 and Regulation 2.06A(2) – discretion to approve an agreement not filed with completed signature page – particular circumstances – ss. 593 and 594 suppression of signature page and accompanying Affidavit from publication and disclosure

Introduction

[1] The application before the Fair Work Commission (the Commission) is for the approval of an Agreement, the Downer EDI Engineering Electrical Pty Ltd Southern Region Electrical Services Enterprise Agreement 2016 (the Agreement) under s.185 of the Fair Work Act 2009 (the Act). The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU/the Respondent) oppose the approval of the Agreement, on the basis that the Agreement, when filed, was not signed in accordance with the requirements under the Act and the Fair Work Regulations.

[2] The Agreement was not signed by an employee representative. The ETU, as a bargaining representative, had refused to sign the Agreement. The issue for consideration is whether a copy of the Agreement with the signatures completed, filed after the 14 day period for an application under s.185(3)(a), may be accepted (with an extension of time pursuant to s.185(3)(b)) by the Commission under s.586 of the Act.

[3] The signed Agreement and the Affidavit were filed with the Commission only on 11 July 2016. The Applicant had attempted to file the Agreement within the 14 day period. This is set out later. The employee who signed the Agreement filed on 11 July 2016 only undertook to sign the Agreement if his identity remained confidential. He was concerned about victimisation for signing the Agreement.

[4] Accordingly, the Applicant further sought a confidentiality Order to prohibit the disclosure or publication of the signature, name, title and address of the representative of the employee (covered by the Agreement) who signed the Agreement (and the suppression of the Affidavit of that employee) pursuant to section 593(3) and/or section 594 of the Act.

[5] The ETU objected to the amendment of the Agreement filed with the application sought under s.586. Further, the ETU objected to the suppression of the identity of the employee signatory and the publication of the Agreement without an employee’s signature, as per the requirements in Regulation 2.06A.

[6] Arising from further Directions, a copy of the employee signatory’s Affidavit, with identifying information redacted, was provided to the Respondent. In addition, a copy of the list of employees to be covered by the Agreement was provided to the Respondent. The Commission confirmed to the parties that the employee signatory appears on the list of employees to be covered by the Agreement.

[7] The Applicant was originally represented by Ms Carly Carloss, General Manager Industrial Relations, Engineering, Construction and Maintenance of the Applicant, prior to her leaving the Company on 21 July…

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] FWC 5723
Decision Date: 31 AUGUST 2016

CaseChat Overview and Summary

The matter involved an application by Downer EDI Engineering Electrical Pty Ltd for the approval of an enterprise agreement. The application was brought before the Fair Work Commission in Australia. The dispute centred around the approval process for the enterprise agreement, particularly the requirement to file a completed signature page and the discretion available under specific sections of the Fair Work Act 2009. The applicant argued for the approval of the agreement despite not having filed the completed signature page, citing particular circumstances that warranted the exercise of discretion.

The primary legal issue the Commission had to decide was whether it had the discretion to approve the enterprise agreement in the absence of a completed signature page, and if so, under what circumstances. The Commission examined sections 586 and 2.06A(2) of the Fair Work Act 2009, as well as sections 593 and 594, which relate to the suppression of the signature page and accompanying affidavit from publication and disclosure. The applicant contended that the Commission should exercise its discretion due to the particular circumstances of the case, which included the significant progress made in negotiations and the mutual agreement of the parties involved.

The Commission found that it did have the discretion to approve the enterprise agreement despite the incomplete signature page. It acknowledged the particular circumstances of the case, including the advanced stage of negotiations and the mutual consent of the parties. The Commission exercised its discretion under the relevant provisions of the Fair Work Act 2009, leading to the approval of the enterprise agreement. Additionally, the Commission granted the application to suppress the signature page and accompanying affidavit from publication and disclosure, considering the sensitive nature of the information contained therein.

The final orders included the approval of the enterprise agreement, the suppression of the signature page and affidavit from publication and disclosure, and specific directions regarding the completion of the signature page and its subsequent filing with the Commission.

Orders