[2015] FWC 2560 [Note: An appeal pursuant to s.604 (C2015/3716) was lodged against this decision - refer to Full Bench decision dated 13 August 2015 [[2015] FWCFB 4467] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Main People Pty Ltd
(AG2014/6270)

DEPUTY PRESIDENT ASBURY

BRISBANE, 14 APRIL 2015

Application for approval of the Main People Pty Ltd Agreement 2014 - agreement remitted by full bench for consideration of whether concerns about agreement passing the better off over all test can be addressed by the employer giving undertakings - CFMEU seeking to be heard in relation to approval of agreement.

Background

[1] An application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of the Main People Pty Ltd Agreement 2014 (the Agreement).
The matter was remitted to me by a Full Bench, of which I was a member, after that Full Bench determined to quash an earlier decision to approve the Agreement following a successful appeal by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) (the Unions). 1

[2] The Full Bench in allowing the appeal found that there was insufficient material to conclude that the Agreement passed the Better Off Overall Test (BOOT) but noted that it is possible that concerns in relation to this matter could be overcome by the provision of a suitable undertaking. Consistent with the Decision in BUPA Care Services 2the Full Bench held that s. 190 of the Act requires that where the Commission has a concern that an agreement does not meet the requirements set out in ss. 186 and 187 of the Act, the Commission must give the employer the opportunity to provide a written undertaking aimed at meeting those concerns.

[3] The Full Bench also rejected an argument by the Unions that the group of employees was not fairly chosen and held that there was nothing unusual or unnecessarily untoward in a relatively new business making an enterprise agreement early in its life with a small number of employees with an expectation that the business will grow and a large number of employees will be employed.

[4] On 4 December 2014 Minter Ellison Lawyers, the Applicant’s representatives, corresponded with the Commission proposing the terms of an undertaking. That undertaking did not fully address the issues raised by the Full Bench in the appeal, and I determined to list the matter for hearing.

The role of the CEPU in the hearing

[5] On 12 December 2014, Hall Payne Lawyers, the representatives for the Unions, corresponded to advise that the Unions did not consider the proposed undertaking to be “satisfactory” and sought to be heard “upon this issue”.

[6] The Unions sought to be heard in accordance with s.590 of 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 Main People Pty Ltd

Details

AGLC: Main People Pty Ltd [2015] FWC 2560
Case: [2015] FWC 2560
Decision Date: 14 APRIL 2015

CaseChat Overview and Summary

Main People Pty Ltd was the subject of an application before the Fair Work Commission, where the central dispute revolved around the approval of the Main People Pty Ltd Agreement 2014. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to be heard in relation to the agreement, raising concerns that it did not meet the better off overall test (BOOT). The full bench had previously remitted the agreement for further consideration of these issues.

The primary legal issues before the Commission were whether the agreement could be approved despite the concerns about the BOOT test and if the employer's undertakings could sufficiently address the concerns raised by the CFMEU. The Commission was required to consider the implications of the concerns about the agreement's compliance with the BOOT test and the appropriateness of the employer providing undertakings to alleviate these concerns. Additionally, the Commission needed to determine the appropriate process for the CFMEU to be heard on the approval of the agreement.

In reaching its decision, the Commission acknowledged the importance of the BOOT test in ensuring that employees are not disadvantaged by an enterprise agreement. It noted that the employer had provided undertakings aimed at addressing the concerns about the agreement's compliance with the BOOT test. The Commission found that the concerns could be addressed by the employer's undertakings, and that the CFMEU should be afforded an opportunity to be heard on the approval of the agreement. Consequently, the Commission approved the agreement, subject to the employer fulfilling the specified undertakings, and directed that the CFMEU be given an opportunity to be heard in relation to the approval.

Orders