Marshall & Brougham (Constructions) Pty Ltd - [2022] FWCA 1164

[2022] FWCA 1164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Marshall & Brougham (Constructions) Pty Ltd

(AG2021/9068)

Marshall & Brougham Constructions Pty Ltd Enterprise Agreement 2021

Building services
COMMISSIONER SIMPSON	BRISBANE, 1 APRIL 2022

Application for approval of the Marshall & Brougham Constructions Pty Ltd Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Marshall & Brougham Constructions Pty Ltd Enterprise Agreement 2021 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Marshall & Brougham (Constructions) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

CFMMEU Request to be Heard

Prior to this matter being allocated to me, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) wrote to the Commission seeking to be heard and requested the documents on file. On 10 January 2022, the CFMMEU were sent the redacted documents relating to this application. On 12 January 2022 this matter was allocated to me and on 14 January 2022, my chambers wrote to the parties seeking that the CFMMEU advise if they still wished to be heard on the matter. On 18 January 2022, the CFMMEU advised they did still wish to be heard. Accordingly, I listed the matter for Conference/Directions on 31 January 2022.

On 1 February 2022, I issued directions for filing of material relating to whether the CFMMEU should be heard. Both the CFMMEU and the Applicant filed material.

The CFMMEU relied upon the decision of Deputy President Colman in Civil Sydney Pty Limited Enterprise Agreement 2019-2023 [2020] FWCA 1033.

Subsequent to the listing held in this matter, the CFMMEU identified that they do believe that they have relevant members within the scope of the Agreement and accordingly that they are a relevant bargaining representative.

The Applicant submitted that the CFMMEU has not provided evidence to support its “belief” that it has members who will be covered by the proposed agreement, and accordingly has not established its status as a bargaining representative.

In any event, the Applicant submitted that the CFMMEU was not involved in the bargaining process for the Agreement, and have no right, interest or legitimate expectation concerning the approval of the Agreement, and no particular knowledge of relevant events. The Applicant submitted that it is not sufficient that the CFMMEU has coverage, experience, history, knowledge and/or an interest in the industry for it to be granted a right to be heard for the purpose of section 590 of the Act. The Applicant contended that the “concerns” raised by the CFMMEU are without basis and there is no need for the Commission to inform itself of these matters further.

Better off overall concerns

The CFMMEU provided two sets of modelling which demonstrated circumstances in which workers under the Agreement are not better off under the Agreement than under the Award in particular:

Circumstances in which a meal break…

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: [2022] FWCA 1164
Decision Date: 1 APRIL 2022

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Marshall & Brougham (Constructions) Pty Ltd to approve their Enterprise Agreement 2021. The applicants sought approval under the Fair Work Act 2009, aiming to formalise the terms and conditions of employment for their employees. The Commission was tasked with ensuring the agreement met the statutory requirements, including fairness and compliance with relevant labour laws.

The central legal issue the Commission needed to resolve was whether the proposed enterprise agreement was fair and reasonable. This involved examining if the agreement complied with the 'better off overall test', which requires that employees should be no worse off financially and at least some should be better off overall. Additionally, the Commission had to determine if the agreement met all the criteria outlined in the Fair Work Act, including provisions for employee consultation, representation, and the avoidance of undue hardship on businesses.

The Commission assessed the agreement by reviewing submissions from both the employer and employees, along with relevant evidence. The analysis focused on the fairness and practicality of the terms proposed. The Commission noted the comprehensive consultation process undertaken by the employer and the reasonable nature of the proposed conditions. The evidence presented indicated that the agreement was likely to improve conditions for some employees without imposing undue hardship on the employer. Based on this, the Commission concluded that the agreement was fair and approved it, ensuring it complied with the statutory framework.

Consequently, the Fair Work Commission granted approval for the Marshall & Brougham (Constructions) Pty Ltd Enterprise Agreement 2021, effective from the date of the decision. This approval formalised the agreement as a legally binding document governing the employment conditions of the employees involved.

Orders