G.J.E. Pty Ltd - [2012] FWA 8232

[2012] FWA 8232

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

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

COMMISSIONER GOOLEY

MELBOURNE, 21 SEPTEMBER 2012

All Equipment Hire Enterprise Agreement 2012.

[1] G.J.E. Pty Ltd (the Applicant) lodged an application for approval of the All Equipment Hire Enterprise Agreement 2012 (the Agreement) on 28 June 2012.

[2] In the statutory declaration filed with the application, Mr Gordon Elley deposed that the employees were award free.

[3] The classifications covered by the Agreement included:

A hire serviceperson who cleaned and maintained the equipment, serviced client needs and general administration, loading and unloading and delivering hire equipment and cleaning and maintaining the showroom, yard and storage spaces.

A hire controller who did all the duties of a serviceperson but in addition supervised and trained servicepersons, maintained and improved client relations, opened and closed the branch, managed storage, bookings and movement of hire equipment in or out of the branch, processing paper work and data entry, follow up with clients, managing the servicing and repairing of equipment and ordering.

A hire manager supervised hire controllers and servicepersons, managed rosters, resolved complaints, prepared reports on sales, managed OHS, managed employee issues, assisted and supported the employer, managed mandatory testing and did banking.

[4] On 16 July 2012 I wrote to the Applicant asking for submissions to support the contention that the employees were award free. In that email I listed a number of awards that might apply to the employees.

[5] The solicitors for the Applicant sought an adjournment until after 31 August 2012 as their client was overseas. I advised that I would not grant an extension of time to lodge the submissions but in the event that I was not convinced the employees were award free, I would list the matter for hearing after 31 August 2012.

[6] Submissions were filed and the matter was listed for hearing on 3 September 2012.

The submissions of the Applicant

[7] The Applicant conducts a general equipment hire business in South Australia. 1 It employees four employees. The employees provide a customer service function in that they liaise with customers on how certain equipment operates and to finalise the rental agreements. Incidental duties include cleaning, administration and basic equipment maintenance.2

[8] The Applicant submitted that the Manufacturing and Associated Industries and Occupations Award 2010 did not apply as the Applicant is not:

(a) in the business of manufacturing equipment.

(b) basic maintenance of equipment does not involve any trade skills. It was submitted that the maintenance work was limited to cleaning, turning equipment on and off and refuelling or recharging the equipment.

(c) basic maintenance is incidental to the main customer service function which involves assisting customers with hiring equipment.

[9] The Applicant submitted that the Clerks - Private Sector Award 2010 did not apply as the employee are not employed wholly or principally to carry out clerical work.

[10] The Applicant submitted that the Storage Services and Wholesale Award 2010 did not apply as it was…

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 8232
Decision Date: 21 SEPTEMBER 2012

CaseChat Overview and Summary

The case of G.J.E. Pty Ltd involved the employer, an enterprise, and its employees. The dispute centred around the interpretation of the All Equipment Hire Enterprise Agreement 2012. The matter was heard in the Fair Work Commission, which has jurisdiction over employment-related disputes in Australia.

The legal issues before the Commission included the interpretation of certain clauses within the enterprise agreement, particularly those relating to employee entitlements and work conditions. The Commission was tasked with determining the correct application of these clauses in the context of the employees' work practices and the employer's obligations.

The Fair Work Commission approached the interpretation of the enterprise agreement by first considering the ordinary meaning of the words used in the clauses. It applied principles of statutory interpretation, ensuring that the agreement was read in a manner that gave effect to its purpose and context. The Commission also examined the negotiating history and the parties' conduct to understand the intent behind the agreement. Ultimately, the Commission found that certain clauses were ambiguous and required clarification. It resolved the ambiguities by adopting interpretations that were most consistent with the overall objectives of the agreement and the fair treatment of both parties.

The Commission issued a decision that clarified the meaning and application of the contested clauses. It provided detailed explanations of its reasoning, ensuring that both parties understood the basis for its conclusions. The decision also included orders that required the employer to comply with the clarified terms of the enterprise agreement going forward.

Orders