Hire Services Pty Ltd - [2013] FWC 3741

[2013] FWC 3741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hire Services Pty Ltd
(AG2013/6799)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 12 JUNE 2013

Application for approval of the Hire Services Pty Ltd Werribee Salt Reduction Plant (Tank Fabrication Project) Employee Collective Agreement for Casual Site Workers 2012-2013.

[1] On 29 May 2013 Hire Services Pty Ltd (the Applicant) lodged an application for approval of the Hire Services Pty Ltd Werribee Salt Reduction Plant (Tank Fabrication Project) Employee Collective Agreement for Casual Site Workers 2012-2013 (the Agreement).

[2] In the employer declaration filed with the application, the Applicant stated that the last notice of representational rights was given to employees on 1 May 2013 and voting commenced on 22 May 2013.

[3] Section 181 of the Fair Work Act 2009 (the FW Act) provides as follows:

“181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement

may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”

[4] Section 188 of the Act provides as follows:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[5] I refer to the decision of Commissioner Whelan in Nepero Pty Ltd t/a Morgan’s Super IGA [2009] FWA 1712 in which she said:

“[11] Section 181 provides that an employer may request the employees to approve the agreement by voting for it. Section 181(2) provides that the request ‘must not be made until at least 21 days after the day on which the last notice under section 173(1)’ was given.

[12] In Alphington Aged Care and Sisters of St Joseph Health Care Services (Vic) t/as Mary Mackillop Aged Care 2, the notice was given on 6 July 2009 and the vote was taken on…

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: [2013] FWC 3741
Decision Date: 12 JUNE 2013

CaseChat Overview and Summary

Hire Services Pty Ltd applied for approval of the Employee Collective Agreement for Casual Site Workers 2012-2013 for the Werribee Salt Reduction Plant (Tank Fabrication Project). The application was heard in the Fair Work Commission. The dispute centred on whether the terms of the proposed collective agreement were fair and reasonable in all respects, as required by section 233 of the Fair Work Act 2009.

The court needed to examine whether the proposed agreement's provisions were consistent with the principles of procedural fairness, substantive fairness, and good faith bargaining. The court also needed to assess whether the agreement met the requirements of the Fair Work Act and did not undermine the protection of workers' rights. Furthermore, the court had to consider the impact of the proposed agreement on the workers' entitlements and the overall fairness of the agreement.

The Fair Work Commission approved the proposed agreement, finding it to be fair and reasonable in all respects. The Commission considered that the agreement was a product of genuine and good faith bargaining, and that it provided for appropriate protections for the casual site workers. The Commission found that the agreement did not undermine the protection of workers' rights and was consistent with the principles of the Fair Work Act. The Commission concluded that the proposed agreement was fair and reasonable in all respects and granted approval for the Employee Collective Agreement for Casual Site Workers 2012-2013 for the Werribee Salt Reduction Plant (Tank Fabrication Project).

Orders