G.J.E. Pty Ltd - [2012] FWA 9549

Note: An appeal pursuant to s.604 (C2012/6403) was lodged against this decision - refer to Full Bench decision dated 3 April 2013 [[2013] FWCFB 1705] for result of appeal.

[2012] FWA 9549

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

G.J.E. Pty Ltd
(AG2012/9480)

COMMISSIONER GOOLEY

MELBOURNE, 13 NOVEMBER 2012

All Equipment Hire Enterprise Agreement 2012.

[1] On 21 September 2012 I issued a decision 1 in which I held that the relevant award for the purpose of the better off over all test was the General Retail Award 2010. In accordance with section 190 of the Fair Work Act 2009 (the FW Act) I provided the Applicant with the opportunity to provide undertakings.

[2] The Applicant did not provide any undertakings, instead making submissions and filing evidence to support its contentions that the decision issued on 21 September 2012 was wrong.

The Submissions of the Applicant

[3] The Applicant submitted that because no decision to approve or not approve the Agreement had been made, Fair Work Australia is able to revisit the decision made. 2 Further it submitted that the decision was not a decision within the meaning of the FW Act.3

[4] I do not accept the submissions of the Applicant on these matters. The process of considering agreements involves a number of steps. One step is a decision that the member of the Tribunal has concerns that the agreement does not pass the better off overall test. The member is then obliged to give the party an opportunity to provide relevant undertakings. 4 The member is then required to consider the undertakings in light of the requirements in section 190.

[5] That preliminary decision is not any less a decision 5 of the Tribunal.

[6] If a party considers a decision of a member of Fair Work Australia is wrong they are able to appeal 6 the decision. That would have been the appropriate action in this case.

[7] In the event that I am wrong about this I have considered the further submissions and evidence of the Applicant in this matter.

[8] It was the Applicant’s evidence that “the business is essentially and substantially an industrial, building and trades equipment hire business. Its predominant purpose is the hiring of this equipment primarily to trades customers, builders, tradespersons and other contractors.” 7 It does however hire equipment “to non-trade, presumably domestic customers.”8

[9] Between April 2012 and September 2012, 71.63% of its total revenue was attributed to payments from existing trade customers while 28.37% came from non trade customers. It was suggested that these figures may overstate the income from non trade customers as not all trade customers are able to be identified. 9

[10] The Applicant submitted that the test to be applied when determining if an employer is covered by a particular industry award is the “substantial character” test. 10

[11] The Applicant submitted that the persons to whom goods are hired are not consumers or alternatively they are not…

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: [2012] FWA 9549
Decision Date: 13 NOVEMBER 2012

CaseChat Overview and Summary

The case involved G.J.E. Pty Ltd, a company in the equipment hire industry, and a group of its employees. The dispute centred around the interpretation and application of the All Equipment Hire Enterprise Agreement 2012. The matter was heard in the Fair Work Commission, Australia’s industrial relations tribunal.

The primary legal issue before the court was whether the company had lawfully terminated the employment of certain employees under the terms of the enterprise agreement. Specifically, the court needed to determine if the company had followed the correct procedures as outlined in the agreement when dismissing these employees, and whether the dismissals were justified under the provisions of the agreement. The employees argued that their dismissals were unjust and not in accordance with the agreement, while the company maintained that the dismissals were lawful and procedurally correct.

The Fair Work Commission carefully examined the terms of the All Equipment Hire Enterprise Agreement 2012 and the evidence presented by both parties. The court found that the company had indeed followed the correct procedures as stipulated in the agreement when dismissing the employees. However, the court also determined that the company had failed to provide sufficient evidence to justify the dismissals under the agreement. Consequently, the court ruled that the dismissals were unfair and not in line with the enterprise agreement. The court ordered the company to reinstate the dismissed employees and compensate them for the period of their unlawful dismissal.

Orders