DECISION

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

MJC Fire Protection Pty Ltd
(AG2016/2817)

COMMISSIONER ROE

MELBOURNE, 17 JUNE 2016

Application for approval of the MJC Fire Protection Pty Ltd Enterprise Agreement 2016 - 2020. Section 188 genuine agreement. Agreement not approved.

[1] An application has been made for approval of an enterprise agreement known as the MJC Fire Protection Pty Ltd Enterprise Agreement 2016 - 2020 (the Agreement). The application was made pursuant to Section 185 of the Fair Work Act 2009 (the Act). It has been made by MJC Fire Protection Pty Ltd. The Agreement is a single enterprise agreement.

[2] The CEPU objected to the approval of the Agreement on two grounds. Firstly, the CEPU submit that there are a number of BOOT issues. Secondly, the CEPU submit that the Agreement was not genuinely agreed to by the employees covered by the Agreement.

[3] Otherwise I am satisfied and it is not in dispute that the requirements of Sections 186 and 187 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

BOOT issues

[4] In respect to the BOOT issues I note that the rates of pay are more than 50% above the Plumbing and Fire Sprinklers Award 2010 rates except for first and second year adult apprentice rates which are respectively 6% and 17% above the Award rates. I am satisfied and it is not in dispute that the Plumbing and Fire Sprinklers Award 2010 is the relevant Award for the purposes of the BOOT. I am satisfied that these higher rates ensure that employees are better off overall notwithstanding the issues raised by the CEPU, save for the following matters.

[5] The provisions of the Agreement for the extra week of annual leave for continuous shift workers are inferior to the Award. Prior to approving the Agreement I would therefore require an undertaking that:

“In lieu of clause 50.2 of the Agreement the definition of continuous shiftworker as follows shall apply:

continuous shiftworker means an employee engaged to work in a system of consecutive shifts throughout the 24 hours of each of at least six consecutive days without interruption (except during breakdown or meal breaks or due to unavoidable causes beyond the control of the employer) and who is regularly rostered to work those shifts.”

[6] I would also require an undertaking that Clause 34.1(a) of the Award shall apply as follows:

“In addition to the entitlement to annual leave in the NES, employees who work or are required to be on call for any part of 26 weekends or more in any year of employment are entitled to an additional week’s annual leave on the same terms and conditions.”

[7] The Agreement at Clause 18.1.4 provides…

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: [2016] FWC 3904
Decision Date: 17 JUNE 2016

CaseChat Overview and Summary

MJC Fire Protection Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement. The dispute involved whether the agreement met the requirements of section 188 of the Fair Work Act 2009. The Fair Work Commission was the tribunal tasked with making the determination.

The legal issues centred around whether the agreement was genuinely an enterprise agreement. The company argued that the agreement was negotiated in good faith and reflected the true consensus of the parties. The opposing party contended that the process was flawed and the agreement did not represent a genuine bargain. The Commission had to assess the negotiation process and determine if the agreement was reached in accordance with the statutory requirements.

The Fair Work Commission found that the negotiation process did not meet the standards required under section 188 of the Act. The Commission concluded that the process was not conducted in good faith and that the agreement did not genuinely reflect the parties' negotiations. As a result, the application for approval of the enterprise agreement was dismissed. The Commission held that the agreement did not meet the statutory requirements for genuineness and could not be approved.

The Fair Work Commission dismissed the application for approval of the MJC Fire Protection Pty Ltd Enterprise Agreement 2016 - 2020. The Commission ruled that the agreement was not genuinely an enterprise agreement, and thus did not meet the requirements of section 188 of the Fair Work Act 2009.

Orders