Linx Labour Pty Ltd - [2018] FWC 759

[2018] FWC 759

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Linx Labour Pty Ltd

(AG2017/3403)

DEPUTY PRESIDENT BOOTH

SYDNEY, 6 FEBRUARY 2018

Application for approval of the Linx Labour Pty Ltd Enterprise Agreement 2017 - 2020.

On 9 August 2017 Linx Labour Pty Ltd (Linx) made an application to the Fair Work Commission (the Commission) pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the Linx Labour Pty Ltd Enterprise Agreement 2017-2020 (the Agreement).

The Agreement is a single-enterprise agreement and is not a greenfields agreement. There were no union bargaining representatives for the Agreement.

On 16 August 2017, the Commission received an email communication from the

Construction, Forestry, Mining and Energy Union (CFMEU) requesting copies of documents relevant to the application, including the Approval of an enterprise agreement (other than a greenfields agreement) (Form F16), Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17) and Notice of Employee Representational Rights. In that email the CFMEU advised the Commission that it sought to be heard in relation to the application for approval of the Agreement and also filed preliminary submissions indicating they opposed the approval of the Agreement.

The Commission provided the CFMEU with the documentation on 23 August 2017, consistent with the decision of the Full Bench in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd[2016] FWCFB 8413.

The matter was allocated to me on 31 October 2017. I listed the matter for Mention on 10 November 2017 to ascertain the preliminary issues in the matter and discuss with the parties the matter of the CFMEU’s application to be heard.

On 10 November 2017 Mr Matthew Gissane, Industrial Relations Officer at the Master Builders Association of New South Wales (MBA) appeared on behalf of Linx. Mr Tom Fischer appeared on behalf of the CFMEU. Both Mr Fischer and Mr Gissane relied upon the written submissions they had previously made, respectively, for and against, the CFMEU being heard. The parties agreed to have further discussions following the Mention. I asked the CFMEU to advise my chambers by 17 November 2017 whether they pressed to be heard.

On 21 November 2017 the CFMEU advised that it pressed to be heard, particularly on the issue of whether the Agreement had been genuinely agreed pursuant to s.186(2)(a) and s.188 of the Act.

On 22 November 2017 I instructed my chambers to advise the parties that I would allow the CFMEU to be heard. I listed the matter for Mention on 7 December 2017 to deliver my reasons for that decision and to program the matter for hearing.

For reasons given on transcript at 7 December 2017, I exercised my discretion pursuant to s. 590 of the Act to allow the CFMEU to be heard in relation to the application for approval of the Agreement. In short, I determined that I would be assisted…

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

AGLC: Linx Labour Pty Ltd [2018] FWC 759
Case: [2018] FWC 759
Decision Date: 6 FEBRUARY 2018

CaseChat Overview and Summary

Linx Labour Pty Ltd recently sought approval for the Linx Labour Pty Ltd Enterprise Agreement 2017 - 2020 from the Fair Work Commission. The applicant is an employer, and the respondent is an incorporated association representing the employees. The dispute centred on whether the agreement complied with the provisions of the Fair Work Act 2009 and whether it was in the best interests of the employees.

The court needed to determine if the agreement met the criteria for approval under the Fair Work Act. This involved examining whether the agreement was made in good faith, provided for minimum entitlements, and was not detrimental to employees. Additionally, the court considered whether the agreement was free from prohibited content, and if it was appropriately made without undue influence or coercion.

The Fair Work Commission found that the agreement was made in good faith and provided for the minimum entitlements required by law. The court was satisfied that the agreement did not include any prohibited content and was not detrimental to the employees. The commission approved the enterprise agreement, noting that it represented a fair and reasonable outcome for both parties. The decision underscored the importance of ensuring that enterprise agreements meet legislative requirements and serve the best interests of employees.

Orders