G.J.E. Pty Ltd - [2013] FWCFB 1705

[2013] FWCFB 1705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

G.J.E. Pty Ltd
(C2012/6403)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT SMITH
COMMISSIONER RYAN

MELBOURNE, 3 APRIL 2013

Appeal against decision [[2012] FWA 9549] of Commissioner Gooley at Melbourne on 13 November 2012 in matter number AG2012/9480 - substantial characters of enterprise - industries of employer - General Retail Award 2010 coverage - better off overall test - enterprise agreement approval refused.

Introduction

[1] G.J.E Pty Ltd (GJE) has appealed a decision 1 of Commissioner Gooley of 13 November 2012 in which the Commissioner declined to approve the All Equipment Hire Enterprise Agreement 2012 (the Agreement). The Agreement covers GJE and all its employees employed in the job classifications in the Agreement.

[2] In a statutory declaration filed with the application for approval of the Agreement, Mr Gordon Elley, Managing Director of GJE deposed to the effect that the Agreement covered four employees and that no modern award covered GJE in relation to any employees covered by the Agreement. The Commissioner subsequently sought submissions in regard to this declaration and then made a decision, 2 prior to the decision the subject of the appeal, that the General Retail Award 20103 (Retail Award) was relevant for the purposes of assessing whether the Agreement passed the better off overall test (BOOT).4 The Commissioner affirmed that decision in the decision the subject of this appeal and concluded that she was not satisfied the Agreement passed the BOOT. She went on to reject GJE’s application for approval of the Agreement as GJE had been provided with the opportunity to provide written undertakings to meet the Commissioner’s concern that the Agreement did not pass the BOOT, but had not done so.

Relevant law

[3] Section 186(1) of the Fair Work Act 2009 (Cth) (FW Act) provides that if an application for approval of an enterprise agreement is made, the Fair Work Commission (FWC) must approve the agreement if the requirements set out in ss.186(2) - (6) and 187 of the FW Act are met.

[4] Section 186(2) provides that:

“The FWC must be satisfied that:...

(d) the agreement passes the better off overall test.”

[5] Section 193 concerns the BOOT and relevantly provides that:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee ...

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern award)…

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] FWCFB 1705
Decision Date: 3 APRIL 2013

CaseChat Overview and Summary

G.J.E. Pty Ltd was involved in an appeal against a decision rendered by Commissioner Gooley on 13 November 2012 in Melbourne. The decision pertained to a matter numbered AG2012/9480, which revolved around whether the company's operations exhibited the substantial characteristics of an enterprise, the applicable industry for the employer, and the coverage under the General Retail Award 2010. The crux of the appeal was the refusal of approval for an enterprise agreement under the better off overall test.

The legal issues before the court required clarification on several fronts. Firstly, it needed to be determined whether G.J.E. Pty Ltd's activities indeed embodied the fundamental characteristics of an enterprise. Secondly, the court had to ascertain the precise industry classification pertinent to the employer's operations. Thirdly, the coverage under the General Retail Award 2010 was to be examined in detail. Finally, the court had to review the application of the better off overall test in the context of the refusal to approve the enterprise agreement.

The court meticulously analysed the evidence and submissions from both parties. It concluded that the activities of G.J.E. Pty Ltd did reflect the substantial characteristics of an enterprise. The industry classification was deemed appropriate, and the coverage under the General Retail Award 2012 was confirmed. However, the court found that the refusal to approve the enterprise agreement was justified under the better off overall test, as the agreement did not meet the required threshold for overall benefit to the employees. Consequently, the appeal was dismissed.

Orders