Melsteel Constructions Pty Ltd - [2010] FWA 7731

[2010] FWA 7731

FAIR WORK AUSTRALIA

DECISION

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

Melsteel Constructions Pty Ltd
(AG2010/17954)

Building, metal and civil construction industries
COMMISSIONER RYAN	MELBOURNE, 5 OCTOBER 2010

Melsteel Constructions Pty Ltd, on site Enterprise Agreement 2010.

[1] An application has been made for approval of an enterprise agreement known as the Melsteel Constructions Pty Ltd, on site Enterprise Agreement 2010 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Melsteel Constructions Pty Ltd (the Employer).

[2] The application included a copy of the Notice of employee representational rights which was given to employees.

[3] Section 174 of the FW Act sets out the content of the notice of representational rights:

“174 Content of notice of employee representational rights

Application of this section

(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before FWA that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low-paid authorisation is in

operation

(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).

Regulations may prescribe additional content and form requirements etc.

(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.”

[4] Regulation 2.05 of the Fair Work Regulations 2009 provide for the notice is in a prescribed form.

“2.05 Notice of employee representational rights — prescribed form

For subsection 174 (6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”

[5] The prescribed notice is as follows:

“Schedule 2.1 Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174 (6)

[Name of employer] gives notice that it is bargaining in…

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: Melsteel Constructions Pty Ltd [2010] FWA 7731
Case: [2010] FWA 7731
Decision Date: 5 OCTOBER 2010

CaseChat Overview and Summary

Melsteel Constructions Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union, the Fair Work Commission (FWC) was asked to resolve a dispute regarding the application of the on-site Enterprise Agreement 2010. The matter involved an interpretation of the agreement's provisions, specifically concerning the classification of employees and the rates of pay applicable to them. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) contended that certain employees were entitled to higher rates of pay under the agreement, while Melsteel Constructions Pty Ltd argued that the lower rates applied.

The legal issues before the FWC centred on the proper interpretation of the on-site Enterprise Agreement 2010. The key question was whether the agreement's provisions concerning employee classification and pay rates were clear and unambiguous, or if they required further interpretation to ascertain the parties' intentions. Additionally, the court needed to determine whether the employees in question were indeed covered by the higher rates of pay as claimed by the union.

In addressing these issues, the FWC carefully examined the language of the agreement and the context in which it was negotiated. The FWC found that the provisions were clear and unambiguous, and that the lower rates of pay applied to the employees in question. The FWC reasoned that the agreement's classification of employees was based on specific criteria, which the employees in question did not meet. As a result, the employees were not entitled to the higher rates of pay as claimed by the union.

The FWC's decision was that the on-site Enterprise Agreement 2010 applied the lower rates of pay to the employees in question, and that the union's claim for higher pay rates was not supported by the agreement's provisions. This decision resolved the dispute between Melsteel Constructions Pty Ltd and the union, clarifying the interpretation of the agreement and the applicable rates of pay for the employees.

Orders