Macmahon Contractors Pty Ltd - [2021] FWC 6507

[2021] FWC 6507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Macmahon Contractors Pty Ltd
(AG2021/6498)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 3 DECEMBER 2021

Application for approval of the Macmahon Black Coal Mining Agreement 2021 – not genuinely agreed – application dismissed

Introduction

[1] Macmahon Contractors Pty Ltd (Macmahon) has made an application for approval of an enterprise agreement known as the Macmahon Black Coal Mining Agreement 2021 (Agreement) pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single-enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) were bargaining representatives for employees who will be covered by the Agreement (collectively, Unions).

[3] The Form F16 filed by Macmahon provides that there are five employee bargaining representatives involved in the agreement making process.

[4] In reviewing the Agreement, the Fair Work Commission (Commission) identified a number of concerns.

[5] On 2 August 2021 the CEPU filed a Form F18 statutory declaration declaring that they do not support approval of the Agreement on the basis that the Agreement is not a good outcome in terms of members claims. On 9 August 2021 the CFMMEU filed a Form F18 statutory declaration objecting to the Agreement’s approval. The CFMMEU identified 4 matters in respect of which it said it had concerns and identified 14 statements in the Employer’s Declaration which it disagreed with. On 10 August 2021 the AMWU filed a Form F18 statutory declaration adopting and relying on the objections raised by the CFMMEU and opposing the Agreement’s approval on the basis that the Agreement does not reflect or otherwise meet industry standards.

[6] On 16 August 2021 the CFMMEU provided written submissions which further outlined the concerns raised in the CFMMEU’s Form F18 statutory declaration and outlined several new objections to the Agreement’s approval.

[7] The matter was listed for conference before me on 16 August 2021. Following the conference, there was a considerable exchange of correspondence between the Commission, Macmahon and the CFMMEU including submissions and draft undertakings. On 2 September 2021 I issued directions for the filing of consolidated materials to address the issues still pressed by the CFMMEU. The CFMMEU filed final written submissions on 17 September 2021 and Macmahon filed final written submissions on 5 October 2021.

[8] The CEPU and AMWU confirmed that they did not wish to be heard with respect to the application. One individual bargaining representative confirmed that they did not wish to be heard. The remaining individual bargaining representative did not respond to the Commission’s request that they advise as to whether they wished to be heard.

Hearing and Witnesses

[9] The dispute proceeded to hearing before me on 11 October 2021. Pursuant to section 596 of the Act, Mr Andrew Pollock of Counsel appeared on behalf of Macmahon.…

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

Case: [2021] FWC 6507
Decision Date: 3 DECEMBER 2021

CaseChat Overview and Summary

The applicant, Macmahon Contractors Pty Ltd, sought approval from the Fair Work Commission for the Macmahon Black Coal Mining Agreement 2021. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application on the basis that the agreement was not genuinely agreed. The Commission heard the matter and delivered its decision. The central issue before the Fair Work Commission was whether the Macmahon Black Coal Mining Agreement 2021 was genuinely agreed upon by the parties. The Commission examined the process through which the agreement was negotiated and concluded that it did not meet the threshold for genuine agreement.

The Fair Work Commission found that the applicant had not adequately demonstrated that the agreement had been genuinely negotiated and agreed upon by the union. The Commission noted that the applicant had not provided evidence of meaningful negotiations and had failed to address the union's concerns in good faith. The Commission was particularly critical of the applicant's approach to the negotiation process, which it found to be procedurally unfair and lacking in genuine intent to reach an agreement. Given the findings that the agreement was not genuinely negotiated and agreed upon, the Fair Work Commission dismissed the applicant's application for approval of the Macmahon Black Coal Mining Agreement 2021. The Commission emphasised the importance of genuine agreement in industrial relations and highlighted the need for parties to engage in good faith negotiations to reach a fair and equitable agreement.

Orders