[2015] FWC 7345 [Note: An appeal pursuant to s.604 (C2015/7880) was lodged against this decision and Full Bench decision dated 4 May 2016 [[2016] FWCFB 2654] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

MGI Piling (NSW) Pty Ltd and others
(AG2015/1040; AG2015/1055; AG2015/1139; AG2015/1224 & AG2015/1248)

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 23 NOVEMBER 2015

Application for approval of the Enterprise Agreements.

Right to be heard/Good Faith Bargaining.

[1] This decision relates to applications by;

• MGI Piling (NSW) Pty Ltd;
• Bauer Foundations Australia Pty Ltd;
• AVO Piling Management (MSW) Pty Ltd;
• Wagstaff Piling Pty Ltd; and
• Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd,

seeking Fair Work Commission (FWC) approval of their respective Enterprise Agreements.

[2] The Construction, Forestry, Mining and Energy Union (CFMEU) have opposed all of the applications and have sought to be heard in relation to their opposition.

[3] The CFMEU and the Piling and Foundation Specialists Federation, NSW Chapter (PSFS) met on numerous occasions in 2014 in an attempt to negotiate a “pattern” agreement for the piling industry in NSW. These negotiations were concluded in February 2015 when agreement could not be reached between the parties. The CFMEU would not move away from their industry “pattern” agreements. The piling contractors refused to accept the CFMEU Agreement on the basis that it allegedly breaches the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (the Code), which is a piece of legislation that is yet to pass the Australian Senate but has a retrospective application if it ever becomes law.

[4] The Companies were represented by Mr Bruce Hodgkinson of Counsel and Mr Iain Jarman from the MBA. The CFMEU were represented by Mr Jim Pearce of Counsel and Mr Paul Quinn from the CFMEU.

[5] It was agreed during the hearing that it was appropriate to split the applications into two groups, namely;

• Part A. MGI Piling (NSW) Pty Ltd, Bauer Foundations Australia Pty Ltd, AVO Piling Management (MSW) Pty Ltd and Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd; and

• Part B. Wagstaff Piling Pty Ltd

[6] It is relevant to maintain this separation in this decision.

Statutory Provisions

[7] The relevant provisions of the Fair Work Act, 2009 (the Act) pertaining to these applications are contained in Part 2.4 – Enterprise Agreements. The following sections are of significance;

“171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits;

173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by…

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: [2015] FWC 7345
Decision Date: 23 NOVEMBER 2015

CaseChat Overview and Summary

MGI Piling (NSW) Pty Ltd and others were involved in a dispute that was adjudicated by the Fair Work Commission. The case centred on the approval of Enterprise Agreements and the parties' right to be heard and good faith bargaining obligations. MGI Piling (NSW) Pty Ltd, an employer, sought approval for Enterprise Agreements, while the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), representing employees, contested the approval process. The CFMEU argued that MGI Piling (NSW) Pty Ltd did not engage in good faith bargaining and denied them the right to be heard, thereby breaching the legal requirements.

The legal issues that the court needed to address were whether MGI Piling (NSW) Pty Ltd fulfilled their obligations of good faith bargaining and provided the employees' representatives with the right to be heard during the negotiation of Enterprise Agreements. The court needed to determine whether the employer's actions met the standards required by the Fair Work Act 2009 and if the Enterprise Agreements were consistent with the law.

In reaching its decision, the Fair Work Commission assessed the evidence provided by both parties and examined the conduct of MGI Piling (NSW) Pty Ltd throughout the negotiation process. The court concluded that the employer had not engaged in good faith bargaining and failed to give the employees' representatives the right to be heard. The court found that the Enterprise Agreements were inconsistent with the law due to the employer's non-compliance with their legal obligations. Consequently, the Fair Work Commission did not approve the Enterprise Agreements and directed MGI Piling (NSW) Pty Ltd to address the identified issues and re-engage in good faith bargaining with the employees' representatives.

The final orders of the court mandated that MGI Piling (NSW) Pty Ltd must engage in good faith bargaining with the employees' representatives and provide them with the right to be heard. The court also directed the employer to address any other issues identified during the negotiation process and submit the revised Enterprise Agreements for approval once these matters were rectified.

Orders