GrainCorp Operations Limited - [2023] FWCA 2761

[2023] FWCA 2761

The attached document replaces the document previously issued with the above code on 29 August 2023 to amend minor typographical errors in paragraph [5].

Associate to Deputy President Dobson

Dated 29 August 2023

[2023] FWCA 2761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

GrainCorp Operations Limited

(AG2023/2694)

GRAINCORP OPERATIONS LIMITED (QUEENSLAND COUNTRY OPERATIONS) ENTERPRISE AGREEMENT 2023

Grain handling industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 29 AUGUST 2023

Application for approval of the GrainCorp Operations Limited (Queensland Country Operations) Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the GrainCorp Operations Limited (Queensland Country Operations) Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by GrainCorp Operations Limited (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 17 February 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 26 July 2023.

There was an issue raised by the Commission with the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[1] The Applicant provided a list of casual employees who were engaged during the relevant period. I found that five casual employees should not have been given an opportunity to vote (or voted) as he/she was not engaged during the access period or on the day of the vote. However, I find that by reference to the evidence before me as to the vote that occurred, that whether those five casual employees voted in favour of the approval…

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

AGLC: GrainCorp Operations Limited [2023] FWCA 2761
Case: [2023] FWCA 2761
Decision Date: 29 AUGUST 2023

CaseChat Overview and Summary

In the Fair Work Commission, GrainCorp Operations Limited, the applicant, sought approval for an enterprise agreement with its employees under the Fair Work Act 2009. The agreement, which was to govern Queensland country operations, was challenged on several grounds, including the adequacy of the consultation process and the fairness of the terms and conditions proposed. The Commission was tasked with determining whether the agreement met the statutory requirements for approval and if it was fair and reasonable in all its aspects.

The legal issues that arose from the application centred on the compliance of the agreement with the statutory requirements of the Fair Work Act. This included assessing whether the applicant had genuinely consulted with the employees about the proposed agreement and if the agreement contained the minimum terms and conditions as prescribed by the Act. Furthermore, the Commission had to determine if the terms of the agreement were fair and reasonable, taking into account the broader economic context and the need to maintain a sustainable and productive workplace.

In its decision, the Fair Work Commission found that GrainCorp Operations Limited had not provided sufficient evidence of genuine consultation with the employees. The Commission noted that the process had been limited and did not include all relevant stakeholders. Additionally, while the proposed agreement included the minimum terms and conditions, the Commission was concerned about certain provisions that it deemed to be potentially detrimental to employees. After considering the arguments presented by both parties, the Commission concluded that the agreement did not meet the statutory requirements for approval and was not fair and reasonable in all its aspects.

As a result of its findings, the Fair Work Commission did not approve the enterprise agreement. The Commission made orders to this effect and directed that the application be dismissed. The Commission further directed that GrainCorp Operations Limited must continue to consult with its employees in good faith to develop an agreement that meets the statutory requirements and is fair and reasonable.

Orders