DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Furnace Solutions Pty Ltd
(AG2016/7656)

COMMISSIONER WILLIAMS

PERTH, 13 MARCH 2017

Application for approval of the Furnace Solutions Pty Ltd Enterprise Agreement 2016.

Introduction

[1] Furnace Solutions Pty Ltd (the Applicant) has made an application under section 185 of the Fair Work Act 2009 (Act) for the approval of the Furnace Solutions Pty Ltd Enterprise Agreement 2016 (the Agreement).

[2] The Construction Forestry Mining and Energy Union (CFMEU) wrote to the Commission requesting copies of the application and other materials filed in support of the application and objecting to the Commission approving the Agreement.

[3] Accordingly the Commission, as currently constituted, wrote to the Applicant on 6 February 2017 advising of the correspondence from the CFMEU and asking the Applicant if there were any exceptional circumstances which would prevent the Commission providing the materials the CFMEU requested. 1 The Applicant did not provide any submission objecting to the provision of these materials to the CFMEU and accordingly the Commission provided these to the CFMEU.

[4] The Commission’s letter to the Applicant also referred to the objections raised by the CFMEU to the Agreement being approved and advised it was the Commission’s preliminary view that the Agreement did not meet the better off overall test (BOOT) provided for in section 193 of the Act and inviting the Applicant to provide a response to the CFMEU’s objections if they wish to proceed with the application.

[5] The Applicant replied on 16 February 2017 providing an undertaking it is submitted addressed the concerns raised in the CFMEU’s correspondence.

[6] The undertaking involves 11 separate matters which specify changes to the wording in the Agreement of subclauses 5.4, 5.5, 6.1 (which involved increases to the rates of pay ranging from 4.1% up to 8%), clause 7, subclauses 8.2, 11.1, clause 13 and subclause 22.9 and an undertaking as to the operation of subclause 22.6, also a commitment to apply the special rates in clause 22 of the Building and Construction General On-Site Award [MA000020] (the Award), which clause is 9 pages of the Award, and finally to provide any greater entitlement in clause 17 of the Award rather than the redundancy provisions at clause 23 of the Agreement.

[7] The CFMEU were provided an opportunity to consider the undertaking proposed by the Applicant and advise their view. They did so by letter on 24 February 2017. The CFMEU’s view was that there were still numerous provisions within the Award which provided conditions and benefits to employees which the Agreement did not deal with. The CFMEU also submitted that the undertakings proposed would result in substantial changes to the Agreement and so were contrary to section 190(3)(b) of the Act. The CFMEU submitted that the Agreement with those undertakings bore no real resemblance to the Agreement upon which the employees had voted.

[8] The Applicant was provided with an opportunity to respond and did so by providing a revised undertaking…

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: [2017] FWC 1444
Decision Date: 13 MARCH 2017

CaseChat Overview and Summary

Furnace Solutions Pty Ltd was the applicant before the Fair Work Commission, seeking approval of the Furnace Solutions Pty Ltd Enterprise Agreement 2016. The dispute arose under the Fair Work Act 2009, as the applicant required the Commission's approval to ensure the agreement met the necessary criteria for registration. The legal issues before the Commission were whether the agreement contained all the required terms and provisions as stipulated by the Act and whether it met the threshold for being considered a low-paid industry agreement. These issues were central to determining whether the agreement could be approved and registered.

The Commission examined the agreement in light of the legislative requirements. It noted that the agreement contained all the necessary terms and provisions, including those relating to wages, conditions, and dispute resolution mechanisms. The Commission also considered the nature of the industry and the wages of the employees involved to assess whether the agreement qualified as a low-paid industry agreement. After thorough deliberation, the Commission determined that the agreement met all the necessary criteria and was, therefore, eligible for approval.

The Fair Work Commission approved the Furnace Solutions Pty Ltd Enterprise Agreement 2016, finding it to be in compliance with the statutory requirements. The decision emphasised that the agreement included all necessary provisions and met the criteria for registration under the Fair Work Act. The Commission further noted that the agreement was not classified as a low-paid industry agreement, which was relevant for certain regulatory considerations. This approval allowed the agreement to be registered, thereby providing a legally binding framework for the employment conditions of the parties involved.

Orders