Hanson Construction Materials Pty Ltd - [2012] FWA 3037

[2012] FWA 3037

FAIR WORK AUSTRALIA

DECISION

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

Hanson Construction Materials Pty Ltd
(AG2012/761)

Construction, Forestry, Mining and Energy Union
(AG2012/850)

Walter Wright Cranes Pty Ltd
(AG2012/863; AG2012/864)

Watpac Civil & Mining Pty Ltd
(AG2012/896)

J Hutchinson Pty Ltd
(AG2012/915; AG2012/918)

Team Engineering Services Pty Ltd
(AG2012/1174)

Decmil Australia Pty Ltd
(AG2012/1176; AG2012/1177)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 17 APRIL 2012

Summary: whether dispute resolution clause provides representation for non-members – exclusive representation – requirements of s.186(6) of the Act – representation in consultation clause – restricted to delegates only – s.205(1)(b) of the Act – whether model consultation clause must be deemed or whether undertakings available in relation to a consultation term – is a defective consultation term in an agreement a consultation term for the Act’s purposes?

[1] I have before me a number of greenfields agreements for each of which approval is sought under the Fair Work Act 2009 (“the Act’). The Agreements are as follows:

Hanson Construction Materials Caval Ridge Project Union Greenfields Agreement (AG2012/761)

Casa Engineering (Brisbane) Pty Ltd Broadmeadow Sustaining Operations Project Union Greenfields Agreement (AG2012/850)

Walter Wright Cranes Buffel Park Village Project Union Greenfields Agreement (AG2012/863)

Walter Wright Cranes Caval Ridge Project Union Greenfields Agreement (AG2012/864)

Watpac Caval Ridge Project Union Greenfields Agreement (AG2012/896)

Hutchinson Builders Daunia Project Union Greenfields Agreement (AG2012/915)

Hutchinson Builders Caval Ridge Project Union Greenfields Agreement (AG2012/918)

Team Engineering Services Pty Ltd Broadmeadow Sustaining Operations Project Union Greenfields Agreement (AG 2012/1174)

Decmil Australia Buffel Park Village Project Union Greenfields Agreement (AG2012/1176)

Decmil Australia Caval Ridge Project Union Greenfields Agreement (AG2012/1177)
(“the Agreements”).

[2] The employers in each case were represented by the Australian Mines and Metals Association (“AMMA”) with the exception of one agreement, the Casa Engineering (Brisbane) Pty Ltd Broadmeadow Sustaining Operations Project Union Greenfields Agreement (AG2012/850).

[3] The Agreements were made, in the context of the requirements of s.182(3) of the Act, with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”), Construction, Forestry, Mining and Energy Union (“CFMEU”) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“AMWU”).

[4] I have raised with the parties that have made the Agreements the issues as to whether the Agreements meet the requirements of s.186(6) of the Act and s.205(1)(b) of the Act, which are set out further below.

The Disputes Settlement Procedure

[5] The Agreements as cited contain the following dispute resolution clause:

17 Dispute Resolution Process

17.1 Objective of the Dispute Resolution Process

(a) The objective of this procedure is to:

(1) Avoid the escalation of disputes or grievances; and

(2) Provide prompt resolution of issues of concern.

17.2 Steps in the Dispute Resolution Process

(a) Any disagreement or dispute in respect of any matters arising under the Agreement or the National Employment Standards (NES) will be dealt with as outlined in this clause 17.2.

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 Hanson Construction Materials Pty Ltd

Details

AGLC: Hanson Construction Materials Pty Ltd [2012] FWA 3037
Case: [2012] FWA 3037
Decision Date: 17 APRIL 2012

CaseChat Overview and Summary

Hanson Construction Materials Pty Ltd was a party to a dispute, which was brought before the court. The issue revolved around the interpretation and application of a dispute resolution clause within their agreement. Specifically, the court was tasked with determining whether this clause provided representation for non-members, and if it complied with statutory requirements for exclusive representation and consultation.

The central legal issues involved the interpretation of the dispute resolution clause under the Act. The first issue was whether the clause provided adequate representation for non-members. The second issue was whether the clause complied with the requirements of sections 186(6) and 205(1)(b) of the Act. These sections pertain to exclusive representation and the nature of consultation terms within agreements. The court also considered whether a defective consultation term could still be considered a consultation term for the purposes of the Act.

In resolving these issues, the court examined the language and intent of the clause in question. It found that the clause did not provide for representation of non-members, and did not meet the statutory requirements for exclusive representation. The court also determined that the model consultation clause was not restricted to delegates only, and that an undertaking could be made in relation to a consultation term. Ultimately, the court concluded that a defective consultation term did not qualify as a consultation term under the Act. Based on these findings, the court rendered its decision in favour of the party challenging the clause's validity.

Orders