Lofte Australia Pty Ltd - [2023] FWC 2178

[2023] FWC 2178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.182(4) - Application for approval of a greenfields agreement

Lofte Australia Pty Ltd

(AG2023/114)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 5 SEPTEMBER 2023

Application for the approval of the Lofte Australia Pty Ltd Greenfield Agreement 2023 - agreement purportedly made under s 182(4) - whether written notice under s 178B given to an employee organisation that is a bargaining representative for the agreement – whether a notified negotiation period commenced - whether the agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work – meaning of the phrase “pay and conditions that are consistent with the prevailing pay and conditions” - application dismissed

Lofte Australia Pty Ltd (Lofte) is establishing a genuine new enterprise which will deliver vessel loading and discharge solutions and other port operations predominantly at regional containerised and non-containerised ports. The new enterprise will initially operate in Western Australia (WA), but Lofte’s ambition is to expand the enterprise to ports across Australia.[1] Lofte applies for approval of a greenfields agreement that relates to the new enterprise, titled the Lofte Australia Pty Ltd Greenfield Agreement 2023 (Agreement) which is said to have been made pursuant to s 182(4) of the Fair Work Act 2009 (Act). The coverage of the Agreement is framed to operate across Australia consistent with Lofte’s ambition[2] rather than being confined to WA where the new enterprise will operate initially.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is a relevant employee organisation with which a greenfields agreement may be made.

David Larsen is Lofte’s Managing Director and has been involved in the stevedoring and logistics industry for more than 26 years, having first started as a stevedore in Fremantle, Western Australia in 1997.[3] Mr Larsen participated in negotiations for the Agreement with Jeff Cassar and Will Tracey, who are officials in the WA Divisional Branch of the CFMMEU and he was responsible for bargaining on behalf of Lofte.[4] Along with the application for the approval of the Agreement, Lofte filed a Form F21B – Employer's declaration in support of application for approval of greenfields agreement made under subsection 182(4) of the Act (Employer’s declaration) by Mr Larsen addressing the matters that are relevant to the issue of whether the Agreement should be approved.

Several matters are not controversial and on the basis of the Employer’s declaration I am satisfied that:

Lofte is establishing a genuine new enterprise as earlier described and that it has not employed any person who will be necessary for the normal conduct of the new enterprise and who will be covered by the Agreement;
clause 3.2 of the Agreement contains a nominal expiry date which is four years from the date on which the Agreement is approved by the Commission;
the Agreement does not cover all of the prospective employees of Lofte. Coverage is confined to operational employees who will perform work in…

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: Lofte Australia Pty Ltd [2023] FWC 2178
Case: [2023] FWC 2178
Decision Date: 5 SEPTEMBER 2023

CaseChat Overview and Summary

The case involves an application by Lofte Australia Pty Ltd for the approval of the Lofte Australia Pty Ltd Greenfield Agreement 2023. The application was brought before the Fair Work Commission, which is the body responsible for approving such agreements under the Fair Work Act 2009. The central dispute is whether the agreement was made in compliance with the statutory requirements, particularly whether the necessary written notice was provided to an employee organisation that is a bargaining representative for the agreement, and whether the agreement provides for pay and conditions consistent with the prevailing industry standards.

The legal issues before the Commission included whether the company had given the required written notice to the relevant employee organisation and, if so, whether this triggered a notified negotiation period. Additionally, the Commission had to interpret the phrase "pay and conditions that are consistent with the prevailing pay and conditions" to determine if the agreement met the necessary standards. The company argued that the agreement was in line with industry standards, while the opposing party contested this interpretation.

The Fair Work Commission concluded that the written notice required under section 178B of the Act had not been properly provided, and therefore, no notified negotiation period had commenced. Furthermore, the Commission found that the agreement did not provide for pay and conditions consistent with the prevailing industry standards. The Commission's interpretation of the phrase in question emphasised that the agreement must be consistent across all aspects, not just on average, and the evidence presented did not support this consistency. Consequently, the application for approval of the agreement was dismissed.

The final orders of the Fair Work Commission were that the application by Lofte Australia Pty Ltd for the approval of the Lofte Australia Pty Ltd Greenfield Agreement 2023 be dismissed. The Commission did not grant the approval as the statutory requirements were not met, and the agreement did not align with the required industry standards.

Orders