Hawthorne Plant And Logistics Pty Ltd - [2024] FWC 2756

[2024] FWC 2756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Hawthorne Plant And Logistics Pty Ltd

(AG2024/1501)

COMMISSIONER DURHAM

BRISBANE, 3 OCTOBER 2024

Application for approval of the Hawthorne Plant and Logistics Pty Ltd Enterprise Agreement 2024 – whether employees are Better Off Overall – whether employees who voted have sufficient interest and were representative of those to be covered – whether genuine agreement – application dismissed

Hawthorne Plant and Logistics Pty Ltd (HPL) has made an application under s 185 of the Fair Work Act 2009 for approval of an enterprise agreement known as the Hawthorne Plant and Logistics Pty Ltd Enterprise Agreement 2024 (Agreement).

The Application seeks approval of a single-enterprise agreement to cover employees engaged in the operation of minor and major plant and haulage, whom are presently covered by either the Road Transport and Distribution Award 2020 (Haulage Award) or the Building and Construction General On-site Award 2020 (Building Award). The application is opposed by the Construction, Forestry and Maritime Employees Union (CFMEU).

I cannot approve an enterprise agreement unless all the statutory approval requirements have been met. Having considered the evidence and submissions of the parties, I am not satisfied that all employees will be better off overall under the agreement. Further, I have not been convinced that HPL took all reasonable steps to explain the agreement, nor that the employes who voted to approve the agreement are sufficiently representative of those who will be covered by it. Whilst the identified Better of Overall Test (BOOT) issues may be capable of being addressed through further undertakings, the genuine agreement issues cannot. Consequently, the Agreement is not capable of being approved. My reasons follow.

Procedural Background and Evidence

An application seeking approval of the Agreement was lodged on 3 May 2024. The matter was initially allocated to Commissioner Lee who undertook a review of the Agreement and identified a number of issues relating to pre-approval processes and BOOT concerns.

HPL were invited to provide further submissions and/or undertakings to address these concerns, which they did.

On 20 May 2024, pursuant to s 590 of the Fair Work Act 2009 (the Act), Commissioner Lee granted the CFMEU’s request for permission to be heard in relation to the approval of the Agreement. The CFMEU were subsequently provided with the Form F16 and Form F17B (redacted) and associated attachments including the Agreement itself.

The Matter was reallocated to my Chambers as a contested agreement. On 23 May 2024, having reviewed the application and associated correspondence, I sent an email to HPL seeking responses to a range of additional issues I had identified with the Agreement. The CFMEU were invited to provide their views with respect to all of the issues that had been raised regarding the Agreement to date, including the responses and undertakings that had already been provided by HPL.

The matter was listed…

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: [2024] FWC 2756
Decision Date: 3 OCTOBER 2024

CaseChat Overview and Summary

Hawthorne Plant and Logistics Pty Ltd (HPL) applied for approval of a single enterprise agreement under s 185 of the Fair Work Act 2009. The Construction, Forestry and Maritime Employees Union (CFMEU) opposed the application. The application was dismissed by the Fair Work Commission (FWC). The FWC was not satisfied that all employees would be better off overall under the proposed agreement as required by s 186(2)(d) and 193 of the Act. The FWC also found that the agreement had not been genuinely agreed to by the employees as required by ss 180(5), 186(2)(a), 186(2)(b), and 188(2) of the Act. The CFMEU argued that HPL did not take all reasonable steps to explain the agreement to employees and that the employees who voted to approve the agreement were not sufficiently representative of those who would be covered by it. The FWC agreed with the CFMEU. The FWC found that HPL's explanation of the agreement was deficient and that the employees who voted to approve the agreement were not sufficiently representative of those who would be covered by it. The FWC found that the agreement had not been genuinely agreed to by the employees and was not capable of being approved.

Orders