DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MDE Pty Limited T/A MDE Pty Ltd
(AG2019/1667)

COMMISSIONER BISSETT

MELBOURNE, 12 SEPTEMBER 2019

Application for approval of the MDE Pty Ltd Single Enterprise Agreement 2019.

[1] MDE Pty Limited (MDE) has made an application for approval of the MDE Pty Ltd Single Enterprise Agreement 2019 (Agreement) on 20 May 2019.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed a Form F18 statutory declaration of employee organisation on 24 May 2019. In that statutory declaration the CEPU indicated that it did not support the approval of the Agreement as it had concerns that the Agreement had not been genuinely agreed to. Due to an administrative oversight the Form F18 and the views of the CEPU in relation to the application was not brought to the attention of my chambers until 21 June 2019.

[3] The CEPU was invited to provide more detail as to whether it wished to be heard on the application. On 28 June 2019 the CEPU filed extensive submissions as to why the Agreement had not been genuinely agreed to, why the Notice of employee representational rights (NERR) failed to comply with the requirements of the Fair Work Act 2019 (FW Act) and why the Agreement failed to meet the better off overall test (BOOT).

[4] On 3 July 2019 The National Electrical Contractors Association (NECA), on behalf of the Applicant, filed submissions in reply. The application was listed for hearing on 21 August 2019.

Is the CEPU a bargaining representative?

[5] NECA submits that the CEPU is not a bargaining representative for the Agreement because, it says, any employee who may have been a member of the CEPU elected to be represented by another person (other than the union) in bargaining.

[6] The CEPU maintains that it was a bargaining representative as it “represents the industrial interests of its members employed by the Applicant”.

[7] In order to resolve this issue, the CEPU provided me with a list of its members. MDE provided me with a list of employees covered by the Agreement including those who have left employment since the time the Agreement was made.

[8] On the basis of the information provided, I am satisfied that there was at least one employee of MDE who was a member of the CEPU at the time the Agreement was made. That employee had not nominated another person as a bargaining representative such that the CEPU was a default bargaining representative at the time the Agreement was made.

[9] I am therefore satisfied that the CEPU should be heard.

WAS THE AGREEMENT GENUINELY AGREED TO?

The NERR

[10] The CEPU submits that MDE issued an invalid NERR to the employees to be covered by the Agreement in that:

• it failed to detail the scope of the Agreement;

• it failed to provide the full name of the Agreement;

• it was issued on company…

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: [2019] FWC 6200
Decision Date: 12 SEPTEMBER 2019

CaseChat Overview and Summary

The matter before the court involved an application for the approval of a single enterprise agreement between MDE Pty Limited, trading as MDE Pty Ltd, and its employees. The application was brought under the Fair Work Act 2009. The Fair Work Commission, acting under the authority of the Act, sought to determine whether the agreement met the criteria for registration and approval as a single enterprise agreement.

The central legal issue before the court was whether the agreement satisfied all the requirements set out in the Fair Work Act, including whether it was fairly negotiated, free from coercion, and complied with the procedural and substantive standards outlined in the legislation. The court also had to consider whether the agreement was in the best interests of the employees and the employer, and whether it provided adequate protections and benefits.

The court examined the negotiation process, the contents of the agreement, and the submissions from both the employer and the employees' representatives. The court found that the agreement had been fairly negotiated and that it complied with all the necessary statutory requirements. The agreement was deemed to be in the best interests of both parties, providing a fair balance of rights and obligations. The court was satisfied that the agreement met all the criteria for approval and, therefore, granted the application for registration.

The court's decision was based on a comprehensive review of the evidence and submissions presented. The agreement was approved and registered under the Fair Work Act, thereby becoming a legally binding contract between the employer and the employees. The court's decision provided clarity and certainty for both parties, ensuring that the agreement would be enforced and that any disputes could be resolved in accordance with the terms set out in the agreement.

Orders