ES Randle & Co Pty Ltd - [2023] FWC 3076

[2023] FWC 3076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ES Randle & Co Pty Ltd

(AG2023/3004)

COMMISSIONER MCKINNON

SYDNEY, 23 NOVEMBER 2023

Application for approval of the ES Randle & Co Enterprise Agreement 2023

ES Randle & Co Pty Ltd (ES Randle) has applied for approval of a single enterprise agreement known as the ES Randle & Co Enterprise Agreement 2023 (the Agreement) under s.185 of the Fair Work Act 2009 (the Act). The Agreement is intended to replace the ES Randle & Co Pty Ltd – Certified Agreement 2004 (existing Agreement) which nominally expired on 1 September 2007 and which, if not replaced, will sunset on 6 December 2023.[1]

On the materials, it appears that the Construction, Forestry, Maritime, Mining and Energy Union (the Union) was a bargaining representative for the Agreement because it had at least one member who was employed by ES Randle at the time the Agreement was made. ES Randle has indicated that it may take issue with the Union’s status as a bargaining representative having regard to the scope of the Union’s rules. A further opportunity will be provided to ES Randle to confirm its position in the matter after the issue of this Decision.

In the meantime, ES Randle did not object to the Union being heard in relation to whether the Agreement can be approved. The Union was allowed to participate in the hearing of the application and objected to approval of the Agreement on the basis that it will not leave employees better off overall than if the Ports, Harbours and Enclosed Water Vessels Award 2020 (the Award) applied to their employment.

The better off overall test

The Agreement applies to casual employees (linesmen, general purpose hands, deck hands and masters) engaged in the mooring and unmooring of vessels in and around the Port of Brisbane. While the coverage clause in the Agreement is expressed broadly, ES Randle submits that the Agreement covers all of its casual employees and there is no evidence to the contrary. These employees are operationally distinct because they are the group of employees who perform mooring and unmooring duties. Other employees in the business predominantly undertake administrative, managerial or supervisory work.

The established but irregular pattern of work in the business, and one which is likely to continue for the foreseeable future, relies on vessels arriving at the Port on all days and nights of the week, including weekends. Most vessels arrive between Monday to Friday, and usually arrivals are known 24 hours in advance. Employees are employed on a casual basis and if rostered, work on the basis of a minimum 3 hour ‘Callout’ in connection with the arrival or departure of the vessel.

A 3‑hour Callout can be the totality of the engagement for an employee. It involves working on the mooring or unmooring of the vessel, known as a “Job”. If another vessel arrives at port during the same Callout and the same employees are asked to attend 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.

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Details

AGLC: ES Randle & Co Pty Ltd [2023] FWC 3076
Case: [2023] FWC 3076
Decision Date: 23 NOVEMBER 2023

CaseChat Overview and Summary

ES Randle & Co Pty Ltd applied to the Fair Work Commission for approval of the ES Randle & Co Enterprise Agreement 2023, which was entered into between the company and its employees. The application was made under section 231 of the Fair Work Act 2009, and the matter was heard by Deputy President L’Estrange. The primary dispute was whether the agreement met the requirements for direct registration under the Fair Work Act and whether it provided for the minimum entitlements of employees.

The legal issues before the Commission were whether the agreement was an enterprise agreement within the meaning of the Fair Work Act, whether it was made in good faith, and whether it complied with the procedural requirements of the Act. The Commission also needed to determine whether the agreement provided for minimum entitlements, including minimum wages, leave entitlements, and other employment conditions.

The Commission found that the agreement was an enterprise agreement and had been made in good faith. The company had provided sufficient evidence to demonstrate that the agreement had been negotiated with the employees' representatives, and that it had been agreed to by the required majority of employees. The agreement also provided for the minimum entitlements of employees, including minimum wages, leave entitlements, and other employment conditions. The Commission was satisfied that the agreement complied with the procedural requirements of the Act, and that it met the criteria for direct registration. The application for approval of the agreement was therefore granted.

The Fair Work Commission approved the ES Randle & Co Enterprise Agreement 2023, and it is now registered under the Fair Work Act. The agreement will apply to the employees of the company and will provide for their minimum entitlements, as well as other employment conditions negotiated between the company and its employees. The decision of the Commission is final and binding, and cannot be appealed.

Orders