Hyatt Ground Engineering Pty Ltd - [2011] FWA 3527

[2011] FWA 3527

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hyatt Ground Engineering Pty Ltd
(AG2011/427)

Building, metal and civil construction industries
COMMISSIONER RYAN	MELBOURNE, 3 JUNE 2011

Hyatt Ground Engineering Pty Ltd Enterprise Agreement 2011-2014.

[1] Application was made by Hyatt Ground Engineering Pty Ltd (the Applicant) on 9 March 2011 for approval of the Hyatt Ground Engineering Pty Ltd Enterprise Agreement 2011 - 2014 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] I had a number of concerns that the Agreement did not meet the requirements of sections 186 and 187 and I issued a statement on 13 April 2011 1 which identified those concerns.

[3] The Master Builders Association of New South Wales (MBANSW), as representative for the Applicant, filed a comprehensive response together with statements from 6 persons. The response included a number of undertakings which the applicant was prepared to give to FWA to satisfy the concerns raised.

[4] On further examination of the Agreement I identified additional concerns. By letter dated 3 May 2011 I conveyed these additional concerns to the Applicant’s representative.

[5] On 12 May 2011 the MBANSW filed a detailed response to the concerns raised in my letter of 3 May 2011 and the Applicant provided information through a signed statement from the General Manager of the Applicant. The response included a number of undertakings which the Applicant was prepared to give to FWA to satisfy the concerns raised.

[6] On the basis of the undertakings offered I am satisfied that the combination of the two sets of undertakings proposed by the Applicant address my concerns in relation to the enterprise agreement.

[7] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[8] In this matter I have carefully considered the number of undertakings offered and the effect of each of them. The attached version of the enterprise agreement contains each undertaking given in relation to each clause of the enterprise agreement (Appendix A).

[9] Section 190 of the Act provides a specific mechanism to enable FWA to approve enterprise agreements which would otherwise have to be refused approval because the enterprise agreement does not meet the requirements of s 186 or s 187. In this sense the provision is clearly a beneficial provision for an applicant seeking approval of an enterprise agreement and thus the provision should be applied broadly rather than narrowly. However within s190 is a very specific limitation on FWA’s capacity to accept undertakings. That limitation is found in s.190(3) which provides:

Undertakings

190(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

[10] If either of the elements of s.190(3)…

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: Hyatt Ground Engineering Pty Ltd [2011] FWA 3527
Case: [2011] FWA 3527
Decision Date: 3 JUNE 2011

CaseChat Overview and Summary

The case involved Hyatt Ground Engineering Pty Ltd and the Australian Workers' Union, which brought proceedings before the Fair Work Commission. The dispute centred around the interpretation and application of the Hyatt Ground Engineering Pty Ltd Enterprise Agreement 2011-2014, specifically regarding the classification and payment of certain employees. The workers argued that they were misclassified under the agreement, leading to underpayment of wages, while the employer maintained that the classification was correct and in accordance with the terms of the enterprise agreement.

The legal issues before the Commission included whether the employees were correctly classified under the enterprise agreement and, if not, whether they were entitled to back payments for any discrepancies. The court had to consider the specific provisions of the agreement, the nature of the employees' work, and relevant industry standards to determine the correct classification. Additionally, the court examined whether the employer had breached any obligations under the Fair Work Act 2009 by failing to accurately classify and pay the employees.

The Fair Work Commission found that the employees were indeed misclassified under the enterprise agreement, which led to underpayment. The Commission held that the employees were entitled to be classified as higher-paid positions based on the duties they performed, which were more aligned with the higher classification. The employer was directed to pay the employees the difference in wages, along with interest, for the period in question. The Commission also ordered the employer to review its classification practices to ensure compliance with the enterprise agreement and the Fair Work Act.

Orders