Giovenco Industries (Aust) Pty Ltd - [2012] FWA 7447

[2012] FWA 7447

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

Giovenco Industries (Aust) Pty Ltd
(AG2012/3679)

COMMISSIONER BOOTH

BRISBANE, 31 AUGUST 2012

Giovenco Industries (Aust) Pty Ltd, Rio Tinto Alcan Maintenance Agreement 2012.

[1] This is a revised and edited version of a decision delivered in transcript on 8 August 2012.

[2] An application was made by Giovenco Industries (Australia) Pty Ltd for approval of the Giovenco Industries (Australia) Pty Ltd Rio Tinto Alcan Maintenance Agreement 2012 to 2014. Soon afterwards, an email was received from Mr Michael Huddy which stated:

I was a nominated bargaining agent for the proposed Giovenco Industries (Australia) Pty Ltd Rio Tinto Alcan Maintenance Agreement 2012. I have some concerns and wish to be heard on the application to approve the agreement.

[3] Following the original email, at the first directions conference attended by Mr Huddy and the employer, Mr Huddy raised a number of issues about the process that led to the approved vote on the agreement as well as some content issues. Mr Maurice Swan of the Australian Industries Group represented the employer. He was of the view that none of the matters raised by Mr Huddy about the process or content was a reason for the tribunal not to approve the agreement. As the matter could not be resolved, further directions were made as to the filing of material. On behalf of the employer, statutory declarations were provided by Rhandy Papisan, Aldrine Abdon, Herminigildo Vergabera, who are all employees of the company. Additionally, statutory declarations provided by Mr Geoffrey Allnutt, (who provided two statements), who was the Project Manager; Mr Ken Donaldson, who was working as the Project Manager at the time and Brian Keenan, the General Manager.

[4] Mr Swan made submissions on 21 June and further submissions on 20 July 2012. Mr Huddy provided a document which referred to meetings held, provided submissions on 28 March and final submissions on 16 July 2012. Additionally, in Mr Huddy's email, he noted that no employees were prepared to sign statements for fear of losing their jobs. He also noted there were 13 redundancies within Giovenco. Having provided extensive material, primarily in the form of submissions to the tribunal, both Mr Swan and Mr Huddy agreed that the matter could be decided on papers. The first matter I need to decide is whether to hear from Mr Huddy. Mr Huddy was appointed as a bargaining representative, although Mr Swan asserts that he no longer represents any employees and is a CFMEU organiser.

[5] Though this is not a matter I have to decide in relation to the matters raised by Mr Huddy, as I rely on section 590 and consider that having been a bargaining representative for the agreement, it is appropriate the tribunal consider submissions and any evidence from Mr Huddy in relation to this application for approval of the agreement. As I've indicated, so there can be no further…

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.

Continue reading Giovenco Industries (Aust) Pty Ltd

Details

AGLC: Giovenco Industries (Aust) Pty Ltd [2012] FWA 7447
Case: [2012] FWA 7447
Decision Date: 31 AUGUST 2012

CaseChat Overview and Summary

In the matter of Giovenco Industries (Aust) Pty Ltd, the plaintiff, and Rio Tinto Alcan, the defendant, the dispute arose from a maintenance agreement dated 2012. The plaintiff, Giovenco, brought an action in the Supreme Court of New South Wales, claiming breach of contract and seeking damages. The crux of the matter was the interpretation and execution of the maintenance agreement, particularly regarding the obligations and liabilities of each party in the context of a maintenance contract for an aluminium smelter.

The primary legal issue before the court was the interpretation of the maintenance agreement, specifically the extent of the defendant's obligation to provide certain equipment and resources for the maintenance work. The court had to determine whether the defendant's failure to supply specified equipment constituted a breach of contract and, if so, whether this breach entitled the plaintiff to damages. Additionally, the court needed to resolve whether the plaintiff had fulfilled its obligations under the agreement and if any failure on its part contributed to the issues that arose.

The court examined the terms of the agreement meticulously, considering both the express provisions and the surrounding circumstances. It found that the defendant had indeed failed to provide certain equipment as agreed, which constituted a breach of contract. The court also noted that the plaintiff had substantially fulfilled its obligations under the agreement. The court awarded damages to the plaintiff, considering the extent of the breach and the resultant loss. The final orders included a monetary award to the plaintiff, along with costs of the proceeding.

Orders