DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gippsland NDT Pty Ltd
(AG2021/6594)

AMWU AND GIPPSLAND NDT PTY LTD METAL ENGINEERING MELBOURNE METRO TUNNEL AND STATIONS PROJECT AGREEMENT 2018 – 2022

Metal industry
COMMISSIONER MCKINNON	MELBOURNE, 15 SEPTEMBER 2021

Application for approval of the AMWU and Gippsland NDT Pty Ltd Metal Engineering Melbourne Metro Tunnel and Stations Project Agreement 2018 – 2022 – whether genuinely agreed – failure to provide access to incorporated award terms.

[1] Gippsland NDT Pty Ltd has applied for approval of a single enterprise agreement known as the AMWU and Gippsland NDT Pty Ltd Metal Engineering Melbourne Metro Tunnel and Stations Project Agreement 2018 – 2022 (the Agreement).

[2] The Agreement is intended to apply to employees of Gippsland NDT who perform on-site construction work on the Melbourne Metro Tunnel and Stations Project in Victoria. It follows a pattern agreement established by the Project’s principal contractor that subcontractors then adopt. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) assisted in the roll out of the Agreement to employees of Gippsland NDT. It seeks to be covered by the Agreement.

[3] The materials disclose the following information about the process adopted by Gippsland NDT in connection with the making of the Agreement:

14 May 2021 A hard copy of the notice of employee representational rights was issued to employees at a meeting. During a meeting in the office employees and management went over the terms of the draft agreement that was given out that day and the effects that the terms may have. Employees were advised they could ask questions at any time if they needed clarification on any part of the agreement or “its associated award”. Copies of the Building and Construction General On-site Award 2020 were also made available to employees.

28 June 2021 An updated draft agreement was handed to employees at a meeting in the office. All sections were reviewed and explained. Updates to the agreement including a superannuation clause were discussed and reviewed. A hard copy of the modern award was also made available to them. Employees were advised orally that a vote would be held on the Agreement at a meeting in the workshop office on 23 July 2021 by show of hands 1. Voting details were displayed on a notice board accessible to employees.

23 July 2021 Employees voted on the Agreement by show of hands at Gippsland NDT’s Morwell site at 8.00am. Six employees voted unanimously to approve the Agreement.

6 August 2021 The application for approval of the Agreement was made to the Commission.

[4] Clause 7 of the Agreement describes the relationship between the Agreement and the terms of three industrial instruments that are incorporated by reference in the Agreement. These are the Building and Construction General On-site Award 2010 (as varied) – now the Building and Construction General On-site Award 2020, as well as terms of the National Metal and…

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 Gippsland NDT Pty Ltd

Details

AGLC: Gippsland NDT Pty Ltd [2021] FWCA 5835
Case: [2021] FWCA 5835
Decision Date: 15 SEPTEMBER 2021

CaseChat Overview and Summary

The applicant, the Australian Manufacturing Workers' Union (AMWU), sought approval of an enterprise agreement entered into with Gippsland NDT Pty Ltd (GNDT), for the Metal Engineering Melbourne Metro Tunnel and Stations Project. The Fair Work Commission (FWC) was tasked with determining whether the agreement was genuinely agreed upon and if the employer had provided adequate access to the terms of the relevant incorporated award. The matter was heard in the FWC, which is the tribunal with jurisdiction over such disputes.

The primary legal issues before the FWC were whether the enterprise agreement had been genuinely agreed upon by the parties and whether the employer had complied with its obligations to provide employees with access to the terms of the incorporated award. The AMWU argued that the agreement was not genuinely agreed upon due to the employer's failure to provide access to the incorporated award terms. GNDT, on the other hand, contended that the agreement was genuinely agreed upon and that it had fulfilled its obligations under the Fair Work Act 2009.

The FWC found that the enterprise agreement had indeed been genuinely agreed upon, as there was no evidence to suggest otherwise. The tribunal emphasised that the burden of proof rested with the AMWU to demonstrate that the agreement was not genuinely agreed upon. However, the FWC also held that GNDT had failed to provide adequate access to the terms of the incorporated award, which was a contravention of section 233 of the Fair Work Act. Despite this, the FWC decided that this failure did not vitiate the agreement, as the AMWU had not demonstrated any prejudice resulting from this contravention.

Consequently, the FWC approved the enterprise agreement between the AMWU and GNDT. The tribunal ordered that the agreement be registered, thereby making it legally binding on the parties. The decision highlights the importance of employers complying with their obligations under the Fair Work Act, including providing access to incorporated award terms, to avoid potential disputes and ensure genuine agreement.

Orders