LCR Group Pty Ltd

[2016] FWCA 1633

[2016] FWCA 1633

FAIR WORK COMMISSION

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 me the amended, signed copy of the agreement with the relevant formatted variations, the amended signed copy of the variation (as required by s.210 (2) of the Act), and a copy of the agreement as proposed to be varied, along with the requisite declarations.

[7] In my view, the circumstances warrant the exercise of my discretion under s.586 of the Act to bring the signed copy of the variation, into conformity with regulation 2.06A(2). The application did not come to be, or never was an application, because of the apparent deficiency in the signature page of the signed copy of the variation. The signed copy of the variation, after all, is a document which is to accompany the application (see s.210(2) of the Act).

[8] I add that the action agitated under s.586 of the Act is action that is appropriate to the context: no further specificity, declarations or statements of authenticity are required for the purposes of exercising the discretion under s.586 of the Act other than which currently exists. Further, on the materials before me, the persons who signed the original materials in their respective stated representative capacities, are the same persons who signed the amended materials in the same capacities. All the relevant indicia point to that end as well.

[9] Further, no other circumstances (such as the lengthy delay in progressing the variation application means the agreement is closer now to its nominal expiry date or that there may have theoretically been changes to the composition of the workforce) cause me to not elect to exercise my discretion in favour of the amended application (or more generally in respect of the variation application itself).

[10] It was pressed in submissions by LCR – perhaps out of an abundance of care - that in the event that it was necessary to extend the time for filing the application to amend the variation application for purposes of s.210(3)(b) of the Act, then it so requested that leave be granted for that purpose.

[11] Having found as I have above, I think that difficulties arise in exercising the discretion under s.586 of the Act in the manner sought by LCR. This is because the discretionary power must be exercised in the context of a fact held to be true, and not on a precautionary basis. But further, it is not the application that is sought to be amended, but a document that accompanies the application (the signed variation).

[12] In my view, on the basis of the various materials now before me, the variation application has met the various statutory requirements in all requisite respects.

[13] I am satisfied that had an application been made under s.185 of the Act for the approval of the Agreement as proposed to be varied, I would have been required to approve the agreement under s.186 of the Act. There are no public interest grounds for not approving the application.

[14] LCR has pressed upon me that as the application was made on 23 June 2015 in the circumstances of this matter the variation should operate from that time.

[15] I note that the approval process has been long delayed owing to various applications and objections to the application. As set out in my prior decision, I dismissed the larger body of objections pressed by the CFMEU which were dealt with over some time. Further, the employer and its employees agreed to vary their agreement for the particular purpose at an earlier time and applied to the Commission to give effect to that agreement. This weighs in support of exercising my discretion in favour of LCR, as sought.

[16] However, as I identified above, LCR is responsible itself for such matters as that arising under Regulation 2.06A, which required under ordinary circumstances some limited time to correct. Accordingly, I will provide – consistent with my discretion under s.216 of the Act - for the variation to operate from 28 June 2015.

[18] The variation is approved and will come into operation, pursuant to s.216 of the Act, on 28 June 2015. The signed copy of the variations to the Agreement is attached to this decision as Annexure A (below).

SENIOR DEPUTY PRESIDENT

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