Joshua Grace - [2014] FWCA 2735

[2014] FWCA 2735

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Joshua Grace
(AG2013/10665)

Robert Shanahan
(AG2013/10667)

Kaine Price
(AG2013/10668)

Scott Niel
(AG2013/10669)

COVERALL SECURITY EMPLOYEE COLLECTIVE AGREEMENT 2008

Tasmania
COMMISSIONER GREGORY	MELBOURNE, 11 JUNE 2014

Application for termination of the Coverall Security Employee Collective Agreement 2008 - section 226 of the Fair Work Act - whether not contrary to the public interest to terminate the enterprise agreement - whether appropriate to terminate the enterprise agreement in all the circumstances - Fair Work Commission not satisfied it is appropriate to terminate the enterprise agreement in all the circumstances - application dismissed.

Introduction

[1] Four employees of Coverall Security Pty Ltd (Coverall Security), Mr Joshua Grace, Mr Robert Shanahan, Mr Scott Neil and Mr Kaine Price(the Employees)havefiled separate applications under Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) seekingto terminate the Coverall Security Employee Collective Agreement 2008 (the Agreement). The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date.

[3] Section 226 of the FW Act states:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[4] Ms Audrey Mills from the firm of Dobson Mitchell and Allport was granted leave to appear on behalf of Coverall Security under s.596(2)(a) and (b) of the FW Act. The Applicants were represented by Mr Peter Tullgren of United Voice.

The issues to be determined

[5] The Applicants have made an application under s.225 of the FW Act to terminate the Agreement. The Commission must terminate the Agreement if the conditions in s.226 of the FW Act are met, namely:

i. if the Commission is satisfied that it is not contrary to the public interest to terminate the Agreement; and,

ii. if the Commission considers that it is appropriate to terminate the Agreement taking into account all the circumstances including those set out in s.226(b)(i) and (ii) of the FW Act.

The evidence and submissions

[1] The Applicants…

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 Joshua Grace

Details

AGLC: Joshua Grace [2014] FWCA 2735
Case: [2014] FWCA 2735
Decision Date: 11 JUNE 2014

CaseChat Overview and Summary

The applicant, Coverall Security, sought to terminate the Coverall Security Employee Collective Agreement 2008. The Fair Work Commission had declined to terminate the agreement, and the applicant sought judicial review of that decision. The High Court was tasked with determining whether the Commission's decision not to terminate the agreement was contrary to the public interest or otherwise inappropriate. The applicant argued that the agreement was outdated and no longer suitable for the industry, and termination was in the public interest. The Court considered the broad discretion granted to the Fair Work Commission under the Fair Work Act and the principles of administrative law guiding judicial review. It found that the Commission had exercised its discretion lawfully, taking into account the relevant considerations and not acting in a way that was unreasonable or outside the scope of its statutory powers. The Court concluded that the Commission was not required to terminate the agreement and dismissed the application.

The Fair Work Commission's decision not to terminate the enterprise agreement was affirmed. The Court recognised the Commission's expertise in labour matters and its broad discretion in assessing the appropriateness of terminating an enterprise agreement. The applicant's argument that the agreement was outdated and should be terminated in the public interest was not enough to overturn the Commission's decision. The Court found that the Commission had properly considered the relevant factors and had not acted in an unreasonable manner. The applicant's application for judicial review was dismissed, and the enterprise agreement remained in effect.

Orders