Morris Corporation (WA) Pty Ltd - [2014] FWCA 7106

[2014] FWCA 7106

FAIR WORK COMMISSION

DECISION

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

Morris Corporation (WA) Pty Ltd
(AG2014/1383)

MORRIS CORPORATION (WA) PTY LTD SITE SPECIFIC AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 OCTOBER 2014

Application for approval of a single enterprise agreement - whether Agreement genuinely agreed to by the employees - access to documents - coercion and incentives - good faith bargaining - meaning of ‘all reasonable steps’ - employees’ access to the Agreement - steps taken by the employer were reasonable - no basis for refusing to approve the Agreement - Agreement approved with undertaking.

INTRODUCTION

[1] On 11 June 2014, Morris Corporation (WA) Pty Ltd (the ‘applicant’) filed an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), for the approval of a single enterprise agreement to be known as the Morris Corporation (WA) Pty Ltd Site Specific Agreement 2014 (the ‘Agreement’). The Agreement is to cover 559 employees engaged in providing facilities management, catering, cleaning and accommodation services to mining and construction clients in remote locations in Western Australia. The sites are specifically identified at cl 1.3.1 of the Agreement as follows:

‘(v) “Sites” means Karntama, Christmas Creek, Christmas Creek Mine, Cloudbreak, Cloudbreak Mine, Hamilton Hotel, Rail Camp 145, Rail Camp 195, Rail Camp 25A, Kangi, Solomon Mine and Castle.’

[2] The Agreement was negotiated with the Australian Workers’ Union, Western Australian Branch (the ‘Union’) and 12 employee-nominated bargaining representatives and was made on 5 June 2014 (s 182) when a vote of employees agreed, by a slim majority, to approve the Agreement. The vote was 206 employees in favour of approving the Agreement from a total of 403 valid votes cast. The vote was conducted over 3 days (3-5 June 2014) and followed an earlier unsuccessful vote conducted between 20-22 May 2014.

[3] The application was listed for approval proceedings before the Fair Work Commission (the ‘Commission’) by phone on 30 June 2014. However, the Union advised me on 25 June 2014 that it opposed the approval of the Agreement on two grounds, namely that:

1. The Agreement had not been genuinely agreed to by the employees to be covered by the Agreement; and

2. the Agreement is inconsistent with, or undermined good faith bargaining by the employer.

[4] The applicant, quite properly, sought further details of the grounds upon which the Union opposed the approval of the Agreement. On 22 June 2014, the Union filed and served the following outline of its objections:

‘1. The Notice of Employee Representation Rights which the employer gave to employees on 10 March 2014 does not contain the proscribed content as required by sub-section 174(1A) of the Act and regulation 2.5 and Schedule 2.1 of the Fair Work Regulations, namely the name of the proposed enterprise agreement.

2. The Agreement has not been genuinely agreed to by the employees covered by the agreement, in that:

a. The employees were not given…

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: [2014] FWCA 7106
Decision Date: 9 OCTOBER 2014

CaseChat Overview and Summary

In the case of Morris Corporation (WA) Pty Ltd, the Fair Work Commission was tasked with deciding whether to approve a single enterprise agreement between the employer and its employees. The dispute arose when the union representing the employees contested the genuineness of the agreement, alleging that it was not truly agreed to by the employees due to coercion and lack of incentives. The central issue before the Commission was whether the employer had taken all reasonable steps to ensure that the employees genuinely agreed to the terms of the agreement.

The Commission carefully examined the concept of 'all reasonable steps' in the context of good faith bargaining and the extent of access provided to the employees. It was argued that the employer had not adequately facilitated the employees' access to the agreement, which could have impacted their ability to genuinely agree to it. However, after reviewing the evidence, the Commission found that the steps taken by the employer to provide access to the agreement were reasonable. Furthermore, there was no evidence to suggest that the employees were coerced or that the employer acted in bad faith during the bargaining process.

Consequently, the Commission concluded that the employer had taken all reasonable steps to ensure that the employees genuinely agreed to the terms of the agreement. Therefore, the Commission approved the single enterprise agreement, subject to an undertaking by the employer to ensure that all employees had access to the agreement and that it was genuinely agreed to. This outcome reflects the importance of good faith bargaining and the reasonable steps required to facilitate genuine agreement between employers and employees.

Orders