Modern Industries Australia Pty Ltd and another
[2010] FWA 2476
•26 March 2010
[2010] FWA 2476
The attached document replaces the document previously issued with the above code on 26 March 2010.
The name of the appellant in the preamble has been corrected.
Margaret Scanlon
Associate to Senior Deputy President Watson
Dated: 26 March 2010
[2010] FWA 2476 |
|
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Modern Industries Australia Pty Ltd and another
(C2010/3196 and 3198)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 26 MARCH 2010 |
Appeal against decision [2010] FWAA 1257 of Commissioner Williams at Perth on 24 February 2010 in matter number AG2009/21898 – Stay application granted.
[1] These are applications for an order to stay the decision 1 by Commissioner Williams of 24 February 2010 to approve, under Sub-division B of Division 4 of Part 2-4 of the Fair Work Act 2009 (the Act), the Modern Industries Australia Pty Ltd and CFMEU (WA) Enterprise Agreement 2008 – 2011 [AE874099] (the agreement), pending the determination of the appeals against the decision by Modern Industries Australia Pty Ltd (the company) and Mr R Witts (an employee covered by the agreement).
[2] In the stay proceedings on 25 March 2010 both appellants were represented by Mr Blackburn, of Counsel. The Construction, Forestry, Mining and Energy Union signed the agreement, but did not file either a Form F18 or Form F22. It was notified of the stay hearing by Fair Work Australia and the appellants, but did not appear.
[3] Commissioner Williams approved the agreementon the basis of the informationprovided by the company in Form F17. On the basis of that information, Commissioner Williams was satisfied that the statutory requirements for approval of the agreement had been met.
[4] However, in the appeal grounds and affidavit material admitted in the stay proceedings, the company contended that due to a mistaken belief by it that the agreement was to cover only employees of its Commercial Division (whereas the coverage clause extends to “the employees” in an unqualified manner), it undertook the pre-approval steps in the Act only in relation to the Commercial Division employees. The company employs around 100 employees in total, 20 of whom work in the Commercial Division. The company’s view that the agreement only applied to and covered employees in its Commercial Division reflected the existence of other statutory agreements, within their nominal expiry period, covering the other employees, with the company being unaware that agreements under made the Act would displace those transitional agreement-based instruments.
[5] As a result of the view of the company that the agreement would apply only to employees in its Commercial Division, only 20 employees had been:
(a) given a notice of representational rights (s.173(1));
(b) given access to a copy of the proposed agreement or had been notified of the time and place for voting (s.180); and
(c) asked to approve the agreement (s.181).
[6] The company contended that on the true facts, now disclosed to Fair Work Australia, no agreement was made in accordance with the requirements of the Act.
[7] The company further submitted that on the basis of Form F17, Commissioner Williams should have concluded that the company regarded the agreement as only applying to employees in its Commercial Division (question 2.15) and that the company had not provided a copy of or access to awards incorporated into the agreement by clause 5 (question 2.3) and, as result could not have been satisfied that the requirements of ss.180(2), (3) and (5), 181(1) and (2) and 180(2) had been satisfied.
[8] Mr Witts, a supervisor employed by the company and an employee covered by the agreement, contended in his appeal grounds and in an affidavit admitted in the stay proceedings that:
(a) he and other employees had not been provided with a notice of representational rights (s.173(1));
(b) he had not been given access to a copy of the proposed agreement or incorporated materials and had not been advised of the voting arrangements in respect of the agreement; and
(c) he had not been asked to approve the agreement.
[9] Mr Witts also advanced the additional grounds concerning ss.180(2), (3) and (5), 181(1) and (2) and 182(1) of the Act.
[10] The appeals are brought under Subdivision E of Division 3 of Part 5-1 of the Act. Under s.606 of the Act, where an appeal has been instituted, Fair Work Australia may order that the operation of the whole or a part of the decision or act concerned be stayed, on any terms and conditions that it thinks appropriate, until a decision in relation to the appeal or review is made or it makes another order.
[11] The conventional tests for the grant of a stay order are:
- Is there an arguable case for the granting of leave to appeal?
- Is there an arguable case to support the appeal itself?
- Does the balance of convenience favour the granting of the stay?
[12] I am satisfied on the information now before Fair Work Australia, in relation to the first appeal ground, concerning notice of representational rights, access to a copy of the proposed agreement, notification of the time and place for voting and a request to approve the agreement that there is an arguable case as to leave to appeal, in the public interest, and the substance of the appeal.
[13] On the basis of the information now before Fair Work Australia, as distinct from the material before Commissioner Williams, it is plain that some employees to be covered by the agreement were not given a notice of representational rights (s.173(1)); access to a copy of the proposed agreement and notification of the time and place for voting (s.180) and were not asked to approve the agreement (s.181). In these circumstances, it is clearly arguable on the true facts that Fair Work Australia could not be satisfied that “the agreement has been genuinely agreed to by the employees covered by the agreement” (s.186(2)(a)). The company did not, as required by the term “genuinely agreed” in s.188 of the Act, comply with s.180(2), (3) or (5) (s.188(a)(i)), s.181(2) (s.188(a)(ii)). Further the agreement was not “made” in accordance with s.182(1) (s.188(b)).
[14] Given this conclusion as to the first appeal ground it is not necessary to address the further appeal ground advanced by the company and Mr Witts.
[15] I am also satisfied that where the agreement was approved in circumstances where, on the true facts now disclosed, it does not meet the statutory requirements for approval, the balance of convenience favours the making of an order staying the decision of Commissioner Williams until the appeal is heard and determined.
[16] Accordingly, I will make an order [PR995479] staying the decision of Commissioner Williams in [2010] FWA 1257.
[17] In the course of the stay hearing, I suggested to the appellants that the appeal might be determined by the Full Bench without a hearing, as provided for in s.607(1) of the Act, which states:
“An appeal from, or a review of, a decision of FWA or the General Manager may be heard or conducted without holding a hearing only if:
(a) it appears to FWA that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and
(b) the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.”
[18] Both the company and Mr Witts consented to such a course and advised that they were content to rely on the submissions in the stay proceedings and the materials filed to date – the appeal book, the notice of appeal and affidavits tendered in the stay proceedings. I have conferred with the other members of the Full Bench constituted for the appeal by the President. The Full Bench is of the view that the appeal can be adequately determined without persons making oral submissions for consideration in the appeal. In those circumstances, the Full Bench will determine the appeal without a hearing.
SENIOR DEPUTY PRESIDENT
Appearances:
J Blackburn of Counsel for Modern Industries Australia Pty Ltd andR Witts.
Hearing details:
2010.
Melbourne (Perth via video):
March 25.
1 [2010] FWAA 1257.
Printed by authority of the Commonwealth Government Printer
<Price code A, AE874099 PR995472>
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