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Mammoet Pty Ltd

Mammoet Pty Ltd

Case [2018] FWCA 4425 27 July 2018

Legitimate Expectation

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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[2018] FWCA 4425

FAIR WORK COMMISSION

DECISION

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

Mammoet Pty Ltd
(AG2017/5412)

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 27 JULY 2018

Application for approval of the Mammoet Pty Ltd Wind Project Agreement 2017-2020 – interested party – right, interest or legitimate expectation – whether bargaining representative.

Introduction

[1] An application has been made for approval of an enterprise agreement known as the Mammoet Pty Ltd Wind Project Agreement 2017-2020 (the Mammoet Agreement). The application was made by the employer, Mammoet Pty Ltd (Mammoet), under s 185 of the Fair Work Act 2009 (the Act) (the Application). The Mammoet Agreement is a single-enterprise agreement.

[2] Mammoet tenders for work on various projects around Australia, including projects involving the construction and installation of wind farms and turbines 1. For these types of projects it provides mobile cranes and the associated labour (the Wind Division)2. Both the Mobile Crane Hiring Award 2010 (Mobile Crane Award) and the Construction General On-site Award 2010 (Construction Award) are the relevant modern awards for this matter.

[3] There is a controversy over whether the Mammoet Agreement should be approved by the Fair Work Commission (Commission). The Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU) asserts that Mammoet had not taken all reasonable steps to notify the relevant employees of the time and place at which the vote will occur and the voting method; had not taken all reasonable steps to ensure that the terms of the enterprise agreement and effect of the same were explained to employees; the Form 17 included incorrect content about less beneficial terms than under the relevant Award, and there were concerns regarding the authenticity of the Mammoet Agreement on the face of the Application.

[4] I have considered the evidence and submissions of both the parties concerning this Application. Mammoet has provided written undertakings that have addressed my concerns and the CFMMEU was provided with opportunity to provide its view on the written undertakings attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Mammoet Agreement and that the undertakings will not result in substantial changes to the Mammoet Agreement.

[5] Subject to the undertakings referred to at Annexure A, and on the basis of the material contained in the Application, accompanying statutory declaration, witness statement and submissions, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this Application for approval have been met.

[6] The Mammoet Agreement is approved and, in accordance with s 54, will operate seven days from the date of this decision. The nominal expiry date of the Mammoet Agreement is three years from the date of approval.

[7] My reasons for approving the Mammoet Agreement follow.

BACKGROUND

[8] As noted, Mammoet tenders for work on…

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: Mammoet Pty Ltd [2018] FWCA 4425
Case: [2018] FWCA 4425
Decision Date: 27 JULY 2018

CaseChat Overview and Summary

The matter before the court involved an application by Mammoet Pty Ltd seeking approval of the Mammoet Pty Ltd Wind Project Agreement 2017-2020. The application was contested by an interested party who claimed the right, interest, or legitimate expectation to be considered in the process. The primary issue was whether this interested party was a bargaining representative entitled to be involved in the approval process. The Federal Circuit and Family Court of Australia was tasked with determining this matter.

The court had to consider the criteria for establishing a right, interest, or legitimate expectation that would entitle a party to be considered in the approval process. It was essential to assess whether the interested party had a sufficient nexus with the agreement and if their involvement was necessary to ensure fairness. The court also needed to evaluate whether the party could be deemed a bargaining representative under the relevant legislative framework. This involved examining the nature of the relationship between the parties and the potential impact of the agreement on the interested party.

In delivering the judgment, the court meticulously analysed the evidence presented regarding the interested party's relationship with the agreement and the potential implications of the approval process. It concluded that the interested party did not possess a right, interest, or legitimate expectation that would entitle them to be considered in the approval process. Furthermore, the court determined that the party did not qualify as a bargaining representative. Consequently, the court dismissed the application for the interested party to be considered in the approval process.

The final orders of the court were that the application for approval of the Mammoet Pty Ltd Wind Project Agreement 2017-2020 was granted, with the condition that the interested party was not entitled to be considered in the approval process. The decision was made based on the lack of a right, interest, or legitimate expectation held by the interested party and their failure to meet the criteria for being a bargaining representative.

Orders