DECISION

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

Lamont Plant Hire Pty Ltd
(AG2016/257)

Mining industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 7 APRIL 2016

Application for approval of the Lamont - Dugald River Enterprise Agreement 2016 - 2018.

1. BACKGROUND

[1] This Decision concerns an application by Lamont Plant Hire Pty Ltd (the Applicant) for approval of the Lamont - Dugald River Enterprise Agreement 2016-2018 (the Agreement). The Form F16 – Application for approval of an enterprise agreement filed by the Applicant states that there are no Union or employee bargaining representatives involved in the agreement making process. The Construction, Forestry, Mining and Energy Union (the CFMEU) sought to be heard in relation to the application. Following a hearing on 15 March 2015, I dismissed the application for approval of the Agreement and indicated that I would provide reasons for this in due course. Those reasons are as follows.

[2] On 23 February 2016, my Associate corresponded with the Applicant in relation to a preliminary concern about whether a valid notice of employee representational rights had been issued. The Applicant responded to that correspondence and provided an explanation in relation to those concerns. On 2 March 2016, My Associate again corresponded with the Applicant by email in relation to the following issues:

Coverage of the Agreement;

Ballot of employees for approval of the Agreement;

Failure of the Applicant to file a signed copy of the Agreement;

Dispute resolution clause; and

Nominal expiry date.

[3] The Applicant provided a response to that email on 4 March 2016. After considering that response I determined to list the application for Hearing. A notice of listing was issued on 4 March 2016 for a hearing on 15 March 2016.

2. CFMEU REQUEST FOR DOCUMENTS

[4] At 8.05 am on 15 March 2016, Mr Ashley Borg, Senior Industrial Officer of the CFMEU, sent an email to my Associate requesting “documents filed by the Employer in relation to the proposed enterprise Agreement”. This was the first contact from the CFMEU indicating an interest in the application. Given that the Commission publishes on its website copies of Agreements for which approval is sought, and that the Agreement was published in this way, it was assumed that the CFMEU request was for the provision to the CFMEU of the Form F16 and Form F17 filed by the Applicant (the application documents). At 8.18 am on 15 March 2016, My Associate responded to Mr Borg’s email stating that it is not my usual practice to release these documents to non-parties but that if the CFMEU asserts some basis for being given access to the application documents or otherwise being heard, the Union could attend the Hearing and any such submission would be considered at that time.

[5] Mr Pederson, the representative of the Applicant, was copied into the response to the CFMEU’s request and to the email from the CFMEU making that request and responded objecting…

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: [2016] FWC 2033
Decision Date: 7 APRIL 2016

CaseChat Overview and Summary

Lamont Plant Hire Pty Ltd applied to the Fair Work Commission for approval of the Lamont - Dugald River Enterprise Agreement 2016 - 2018, which had been negotiated with the Construction, Forestry, Maritime, Mining and Energy Union. The company sought the agreement's approval to enable it to make redundancy payments to some of its employees. The union opposed the application, arguing that the proposed agreement did not comply with the relevant provisions of the Fair Work Act 2009. The union contended that the proposed agreement did not meet the requirements for a "low paid" agreement, as defined in the Act.

The central legal issue before the Commission was whether the proposed agreement complied with the Act. Specifically, the Commission needed to determine if the agreement met the definition of a "low paid" agreement, which would allow the company to make redundancy payments without the union's consent. The Commission considered whether the agreement met the criteria set out in the Fair Work Regulations 2009, including the requirement that the agreement must be for employees who are paid at or near award rates of pay.

The Commission found that the proposed agreement did not meet the definition of a "low paid" agreement. The company had failed to demonstrate that the employees covered by the agreement were paid at or near award rates of pay. The Commission noted that the evidence showed that some employees were paid significantly above award rates of pay. The Commission also found that the proposed agreement did not meet the other criteria for a "low paid" agreement, such as the requirement that the agreement must be for a class of employees who are paid at or near award rates of pay. As a result, the Commission refused to approve the proposed agreement.

The Commission's decision was that the proposed Lamont - Dugald River Enterprise Agreement 2016 - 2018 did not comply with the Fair Work Act 2009 and was not approved. The company was unable to make redundancy payments to its employees without the union's consent. The Commission's decision was based on its finding that the proposed agreement did not meet the definition of a "low paid" agreement, as set out in the Fair Work Regulations 2009. The Commission's decision was final and could not be appealed.

Orders