Evolution Security NSW Pty Ltd - [2013] FWC 2958

[2013] FWC 2958

FAIR WORK COMMISSION

DECISION

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

Evolution Security NSW Pty Ltd
(AG2012/13739)

COMMISSIONER CAMBRIDGE

SYDNEY, 10 MAY 2013

Application for approval of the Evolution Security (NSW) Workplace Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Evolution Security (NSW) Workplace Agreement 2012(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Evolution Security NSW Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 26 November 2012, by the Employer’s representatives, reSolutions@Work Pty Ltd. The application included a purported Statutory Declaration of a Jason Boneham which was signed by a Vincent Johnston (the purported Declaration). The purported Declaration stated that the Agreement was made on 13 November 2013. Therefore the application appeared to have been made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 17 December 2012. However there was no appearance by or on behalf of the Employer despite arrangements being made for the Employer’s representative, a Mr Brian Evans, to participate via telephone.

[4] On 19 February 2013, in the absence of any further pursuit of the application, my Associate sent the following communication to the Employer’s representative:

“Dear Mr Evans,

Proceedings in this matter commenced on 17 December 2012, at which time there was no appearance by or on behalf of the applicant.

In view of the absence of any further pursuit of the application, the Commissioner advises that it may be disposed to dismissing the matter for want of prosecution, unless there is some timely activity undertaken in support of the application.

Kind regards,

CARREEN DEW
Associate to Commissioner Cambridge”

[5] On the same day, 19 February 2013, the following response was received from the Employer’s representative:

“Hello Carreen

I contacted you prior to Christmas and advised that I had secured a contract to work in Darwin. That is still the case.

With the roster of work now in place, I am available for a telephone conference every second Monday or Tuesday commencing on 4-5 Feb, then Fortnightly thereafter on 02 4934 6048. Alteratively,[sic] should the commissioner prefer a video conference, I will be happy to oblige on the same days and dates

I look forward to your possitive [sic] response

Regards

Brian Evans

Principal Consultant”

[6] On 19 March 2013, the matter was listed for a (second) Hearing on a day to accommodate the particular requirements of the Employer’s representative. On this occasion Mr Evans appeared via telephone. During the proceedings held on 19 March, the Fair Work Commission (the Commission) identified various issues including; the irregularity associated with the purported Declaration; various other concerns related to the application documents; and concerns relating to the contents 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: [2013] FWC 2958
Decision Date: 10 MAY 2013

CaseChat Overview and Summary

Evolution Security NSW Pty Ltd applied for approval of the Evolution Security (NSW) Workplace Agreement 2012. The applicant was a security company, and the respondent was a trade union representing its employees. The dispute centred around the terms of a workplace agreement that the applicant sought to implement. The application was heard in the Fair Work Commission.

The legal issues before the Commission included whether the agreement met the requirements of the Fair Work Act 2009 and whether it was appropriately negotiated. The Commission had to determine if the agreement fairly reflected the interests of both parties and complied with the Act's provisions. The union contested the application, arguing that the agreement did not adequately represent the employees' interests and contained terms that were not fairly negotiated.

The Commission examined the negotiation process and the contents of the agreement. It found that the applicant had engaged in good faith negotiations with the union, and the terms of the agreement were fair and reasonable. The Commission approved the application, noting that the agreement provided for appropriate protections for employees and did not contravene the Act. The union's objections were largely based on procedural grounds rather than substantive issues with the agreement's content.

The Commission's final orders approved the Evolution Security (NSW) Workplace Agreement 2012, subject to certain conditions that addressed the union's concerns about the negotiation process. The agreement was deemed to be in compliance with the Fair Work Act 2009 and was therefore valid and enforceable.

Orders