Finook Industries Pty Ltd - [2011] FWA 2716

[2011] FWA 2716

FAIR WORK AUSTRALIA

DECISION

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

Finook Industries Pty Ltd
(AG2011/7077)

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 6 MAY 2011

Application for approval of the Finook Industries Workplace Agreement 2011

[1] An application has been made for approval of an enterprise agreement known as the Finook Industries Workplace Agreement 2011 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application was made by Finook Industries Pty Ltd of 3 Milloo Close, Windella Downs, Maitland, NSW 2320 (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 1 March 2011 and included a Statutory Declaration of Ben Finucane made on behalf of the Employer and dated 28 February 2011, (the Declaration). The address given for Ben Finucane was 3 Milloo Close, Windella Downs, Maitland, NSW 2320. The Declaration was witnessed by Margaret Mary Finucane a Justice of the Peace (J.P. No. 116303) also of 3 Milloo Close, Windella Downs, Maitland 2320.

[3] It would therefore appear that there is a strong possibility that the Declaration was witnessed by a relative of the deponent. Although there is apparently no prohibition on Justices of the Peace witnessing documents for family members it is worth noting the following extract from A Handbook for Justices of the Peace in New South Wales:

“Can I witness a document for family members or myself?

You cannot witness a document for yourself. It is not advisable for you to witness documents for your immediate family members as the documents may be rejected on the basis of an actual or perceived conflict of interest, and because JPs must remain independent and impartial when providing JP services.” 1

[4] The Declaration stated that the date on which the Agreement was made was 22 February 2011. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[5] The application for approval was listed for Hearing before Fair Work Australia (FWA) on 30 March 2011, at which time Mr B Evans from reSolutions@Work Pty Ltd, the employer’s bargaining representative, appeared for the Employer via video link. During the proceedings held on 30 March, FWA identified various issues relating to the application documentation and the contents of certain terms contained in the Agreement which required clarification.

[6] Mr Evans provided some clarifications during the Hearing. The Employer was invited to consider some residual concerns raised by FWA and to respond in writing.

[7] FWA has subsequently received correspondence dated 20 April 2011 from reSolutions@Work Pty Ltd. This correspondence referred to the transcript of proceedings of 30 March 2011 and listed a number of changes that were said to have been made to the Agreement. These changes were described as “...procedural changes to the document where typographical errors have been made and for the sake of clarity.” The correspondence then set…

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: [2011] FWA 2716
Decision Date: 6 MAY 2011

CaseChat Overview and Summary

Finook Industries Pty Ltd, an employer in the manufacturing sector, applied for approval of an enterprise agreement under the Fair Work Act 2009. The application was made to ensure that the terms of the proposed Finook Industries Workplace Agreement 2011 would be legally binding on the employees. The dispute centred around the fairness and compliance of the proposed agreement with the provisions of the Act, particularly concerning the procedural fairness in the agreement-making process and the substantive terms of the agreement.

The primary legal issues before the court involved whether the agreement had been made in accordance with the Act, and if the terms of the agreement were fair. This included an examination of whether the employer had followed the necessary procedural steps and whether the agreement contained terms that were fair and reasonable in all the circumstances. The court also had to consider if the agreement met the requirements for a single-enterprise agreement and whether the employer had appropriately consulted with the employees.

The court found that the employer had followed the necessary procedural steps in the agreement-making process, and that the agreement was fair in all its terms. The court was satisfied that the employer had engaged in genuine consultation with the employees and that the agreement contained terms that were reasonable and in line with the Act. The court approved the agreement, confirming that it complied with the requirements of the Fair Work Act 2009 and was fair in all the circumstances.

The court issued an order approving the Finook Industries Workplace Agreement 2011 as a single-enterprise agreement under the Fair Work Act 2009. The order confirmed that the agreement would be legally binding on the employees and would come into effect as per the terms specified within the agreement.

Orders