DECISION

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

LCR Group Pty Ltd
(AG2015/3647)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 10 NOVEMBER 2015

Summary: allegation by CFMEU that employer concocted ballot for variation – sham redundancy – claims not made out – claimed opposition to variable rates of pay in crane market – objection by CFMEU dismissed.

[1] This decision concerns an application under s.210 of the Fair Work Act 2009 (“FW Act”) for approval of a variation of an enterprise agreement by LCR Group Pty Ltd (“the Company”) in relation to the LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (“the Agreement”). The application was objected to by the CFMEU, for reasons that are set out below.

Relevant legislative provisions

[2] Subsection 211(1) of the FW Act provides:

When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) The FWC is satisfied that had an application been made under section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) The FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note: the FWC may approve a variation under this section with undertakings (see section 212).

[3] Subsection 186(2) of the FW Act provides:

186 When the FWC must approve an enterprise agreement—general requirements
[…]

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

[4] Subsection 188(c) of the FW Act provides:

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

[…]

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[5] The CFMEU opposes the…

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 [2015] FWC 7311
Case: [2015] FWC 7311
Decision Date: 10 NOVEMBER 2015

CaseChat Overview and Summary

The case of LCR Group Pty Ltd involved a dispute between the employer, LCR Group, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The union alleged that the employer had fabricated a ballot to effect a variation, resulting in a sham redundancy, and further claimed that the employer had introduced variable rates of pay in the crane market, which the union opposed. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the employer had indeed concocted a ballot for the variation, whether the redundancy was a sham, and if the employer had indeed implemented variable rates of pay against the union's opposition. The court needed to determine the validity of the union's allegations and the employer's responses.

The court examined the evidence presented by both parties and concluded that the claims made by the union were not substantiated. The employer provided sufficient evidence to counter the allegations of a fabricated ballot and sham redundancy. Additionally, the court found that the union's objection to the employer's introduction of variable rates of pay in the crane market was without merit. The court dismissed the union's claims, finding no grounds for the allegations.

As a result of the court's findings, the union's claims were dismissed in their entirety. The court ruled in favour of the employer, LCR Group, and found that no further action could be taken against the employer based on the allegations made by the union.

Orders