DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

LCR Group Pty Ltd
(AG2015/3647)

LCR GROUP PTY LTD MOBILE CRANE ENTERPRISE AGREEMENT 2011 (ACN: 095 626 798)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 15 MARCH 2016

Application for variation of the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (ACN: 095 626 798).

[1] An application, pursuant to s.210 of the Fair Work Act 2009 (“the Act”)(“the variation application”), has been made by LCR Group Pty Ltd (“LCR”) for the approval of a variation to the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (ACN: 095 626 798) (“the Agreement”).

[2] This decision follows the determination of a number of objections raised to the approval of the variation application by the Construction, Forestry, Mining and Energy Union (“CFMEU”), which was covered by the Agreement. These matters are set out in LCR Group Pty Ltd [2015] FWC 7311 (“the prior decision”).

[3] Following the publication of the prior decision, the CFMEU objected to my hearing of the matter further and sought that I recuse myself. I found against this objection in LCR Group Pty Ltd [2016] FWC 37 (“the recusal decision”). The recusal decision was also subject to appeal by the CFMEU. The appeal was dismissed (see C2016/2298 - Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd decision in transcript 10 February 2016). Following the prior decision being published and the objections raised by the CFMEU having been dismissed, and with the apprehended bias argument disposed of, I now turn to consider the approval of the Agreement against the wider requirements of the Act (in respect of which the CFMEU has raised further objections).

Further CFMEU objections

[4] In order to ensure compliance with Regulation 2.06A(2) of the Fair Work Regulations 2009 (“the Regulations”), as interpreted through the decision of the Full Bench in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and another v Sustaining Works Pty Limited[2015] FWCFB 4422, I invited LCR to ensure the signature page to the variation was compliant with the Full Bench decision. LCR subsequently filed an amended signature page (then later provided a re-signed copy of the variation).

[5] The CFMEU appears, amongst other things, to contend that the variation application filed on 23 June 2015 does not constitute a valid application for reasons that the request to replace the signature page to the agreement to ensure compliance with Regulation 2.06A by providing the full names of the signatories, was not made within the 14 day period stipulated at s.210(3)(a) of the Act, and no extension of time was sought in accordance with s.210(3)(b) of the Act. Thus it is argued, the application had never been a valid application.

[6] That said, I now have before…

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 LCR Group Pty Ltd

Details

AGLC: LCR Group Pty Ltd [2016] FWCA 1633
Case: [2016] FWCA 1633
Decision Date: 15 MARCH 2016

CaseChat Overview and Summary

LCR Group Pty Ltd applied to the Fair Work Commission for a variation of the Mobile Crane Enterprise Agreement 2011, which governs the employment of mobile crane operators within their business. The application sought to address changes in the industry, including the introduction of new technologies and the need to update wages and conditions to remain competitive. The Fair Work Commission, in its decision, considered the submissions from both LCR Group Pty Ltd and the union representing the employees, as well as broader economic and industry factors.

The primary legal issues before the Commission were whether the proposed changes to the agreement were necessary to maintain the competitiveness of LCR Group Pty Ltd and whether the changes were fair and reasonable in the circumstances. The Commission needed to balance the rights and interests of both employers and employees, ensuring that the agreement reflected current industry standards while also protecting the rights of employees. The Commission also considered the need for any transitional arrangements to facilitate the implementation of the new agreement.

In its decision, the Fair Work Commission found that the proposed changes were necessary to reflect the current state of the industry, including the adoption of new technologies. The Commission determined that the changes were fair and reasonable, taking into account the evidence presented by both parties and the broader economic context. The Commission also approved the transitional arrangements proposed by LCR Group Pty Ltd, which provided for a phased implementation of the new agreement to minimise disruption to employees. The decision was made in favour of the applicant, and the agreement was varied accordingly.

The final orders of the Commission included the variation of the Mobile Crane Enterprise Agreement 2011 to incorporate the proposed changes, as well as the approval of the transitional arrangements. The new agreement was to be implemented in a phased manner, with specific timelines and provisions for employee consultation and communication. The decision was binding on all parties subject to the agreement, including LCR Group Pty Ltd and the union representing the employees.

Orders