DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Marine Civil Contractors Pty Ltd
(AG2017/6739)

COMMISSIONER SIMPSON

BRISBANE, 5 JULY 2018

Application for approval of the Marine Civil Contractors Employee Agreement 2018.

[1] On 22 December 2017 Marine Civil Contractors Pty Ltd (the Applicant) lodged an application for approval of the Marine Civil Contractors Employee Agreement 2018 (the Agreement). The Maritime Union of Australia (MUA) as it then was wrote to the Fair Work Commission (FWC) requesting documents relating to the application. On 12 January 2018 the FWC provided the MUA copies of the F16, F17 and Notice of employee representational rights (NERR).

[2] On 17 January 2018 the MUA wrote to the FWC seeking to be heard in relation to the application, and stating that the MUA had concerns that the Applicant had failed to comply with section 180(2)(a) when seeking approval, and believed the Agreement failed to meet the requirements of s.193 of the Fair Work Act 2009 (FW Act). Later that day the Applicant’s representative Ms Moltoni of IRIQ wrote the FWC advising that the Applicant objected to the MUA’s request to be heard, as they were not at any time a bargaining representative and had no standing in relation to the application.

[3] In the period after the MUA registered its objection to the application, the FWC approved the amalgamation resulting in the CFMMEU taking on former obligations of the MUA.

[4] On 4 April 2018 the file was allocated to my chambers. On 24 April the FWC sent correspondence to the Applicant and their representative setting out an extensive list of concerns regarding the application. The correspondence from the FWC requested that a response be provided by 1 May 2018.

[5] On the same day the FWC sent correspondence to Mr Luke Edmonds of the CFMMEU seeking an outline of its grounds of objection to the Agreement, and any submission it wished to make on the Applicant’s objection to the CFMMEU being heard. The FWC requested a response by 1 May 2018.

[6] On 25 April 2018 the CFMMEU provided to the FWC and the Applicant’s representative an outline of submissions including on its standing to be heard and grounds of opposition to the approval of the Agreement.

[7] On 8 May 2018 the Applicant provided a 17 page written submission (8 May submissions) in response to the concerns raised by the FWC. The submissions sought to address each of the issues of concern raised by the FWC.

[8] The 8 May submissions were accompanied by 11 separate undertakings offered by the Applicant to address concerns raised by the FWC. I will not set out in detail each of the responses in the 8 May submissions and the undertakings offered at that time because subsequent to that material the Applicant withdrew the 8 May undertakings and filed further submissions and undertakings which I will address in more detail below.

[9] On 11 May 2018 I issued directions listing the matter for…

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: [2018] FWC 3976
Decision Date: 5 JULY 2018

CaseChat Overview and Summary

Marine Civil Contractors Pty Ltd applied to the Fair Work Commission for approval of the Marine Civil Contractors Employee Agreement 2018. The applicant sought to have the agreement registered as a registered organisation agreement under the Fair Work Act 2009. The applicant argued that the agreement was necessary to provide for the regulation of employment terms and conditions in a manner that was appropriate to the business and operational needs of the company.

The primary legal issue before the commission was whether the terms of the agreement complied with the requirements of the Fair Work Act. Specifically, the commission had to determine whether the agreement provided for the appropriate regulation of employment terms and conditions and whether it was consistent with the principles of the Fair Work Act. The commission also had to consider whether the agreement provided for a fair and efficient system for resolving disputes between the employer and employees.

After reviewing the terms of the agreement and considering the evidence presented by the parties, the commission found that the agreement was consistent with the principles of the Fair Work Act and provided for the appropriate regulation of employment terms and conditions. The commission was satisfied that the agreement provided for a fair and efficient system for resolving disputes and that it was consistent with the objectives of the Fair Work Act. The commission approved the agreement and registered it as a registered organisation agreement.

The court ordered that the Marine Civil Contractors Employee Agreement 2018 be registered as a registered organisation agreement under the Fair Work Act 2009. The agreement was to be effective from the date of registration and was to remain in force until such time as it was varied or terminated in accordance with the provisions of the Fair Work Act. The court also ordered that the applicant pay the costs of the application.

Orders