Murray Irrigation Ltd - [2015] FWCFB 5339

[2015] FWCFB 5339

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 4 Sch. 6—Modern enterprise award

Murray Irrigation Ltd
(EM2013/60)

Agricultural industry
SENIOR DEPUTY PRESIDENT HARRISON DEPUTY PRESIDENT SAMS COMMISSIONER BULL	SYDNEY, 11 AUGUST 2015

Application to make a modern enterprise award to replace the Murray Irrigation Limited Consent Award 2004 [AN120355] - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 sch. 6 items 4, 6 - Fair Work Act 2009 ss. 134, 284 - application dismissed - modern enterprise award not made - Murray Irrigation Limited Consent Award 2004 terminated.

[1] Murray Irrigation Limited (MIL) has applied for a modern enterprise award to be made to replace the Murray Irrigation Limited Consent Award 2004 1 (the 2004 Award). The application is made under item 4 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act).

[2] MIL is the only employer respondent to the 2004 Award. The other parties bound are the AWU-FIME Amalgamated Union, New South Wales (AWU), the Transport Workers’ Union, New South Wales Branch, the Construction, Forestry, Mining and Energy Union of Australia, New South Wales Branch and the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (PSA). 2

[3] In the hearing before us, Mr Coyne appeared, with permission, for MIL. Ms Gherjestani appeared for the AWU. The PSA made written submissions, but did not appear at the hearing. Its submissions were in similar terms to those of the AWU. Additionally, the PSA advised it supported the submissions the AWU would make in the hearing. The AWU and PSA opposed the making of a modern enterprise award. There were no other appearances or written submissions filed by any other party. Unless we indicate otherwise, we will refer to the AWU and the PSA together as “the unions”.

[4] A significant period has elapsed between the filing and hearing of MIL’s application. Two adjournments for a lengthy period were sought by MIL in 2014 on the bases that many of its employees had been unavailable for consultation due to the seasonality of its work, that there had been changes in its senior management and that it desired to consider the outcome in another application made under item 4 of Schedule 6 of the Transitional Act, which was also before this Full Bench. Those adjournments were not opposed by the unions. A further adjournment was sought in early 2015 on the basis that MIL intended to file an application to vary the Water Industry Award 2010 3(the Water Industry Award) as an alternative to pressing the present application. We were not persuaded to grant that adjournment and directions were subsequently issued so as to progress this application.

[5] We have decided not to make a modern enterprise award. These are our reasons for that decision.

The legislative task

[6] Other than modern enterprise awards made under Schedule 6 of the Transitional Act (Schedule 6), no new enterprise…

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: Murray Irrigation Ltd [2015] FWCFB 5339
Case: [2015] FWCFB 5339
Decision Date: 11 AUGUST 2015

CaseChat Overview and Summary

Murray Irrigation Limited sought to replace the Murray Irrigation Limited Consent Award 2004 with a modern enterprise award. The Fair Work Commission was asked to dismiss the application under sections 134 and 284 of the Fair Work Act 2009, as well as schedule 6 items 4 and 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Fair Work Commission was tasked with determining whether the application met the criteria for a modern enterprise award and whether the existing award should be terminated.

The legal issues before the Fair Work Commission included whether the application complied with the statutory requirements for a modern enterprise award and whether the Murray Irrigation Limited Consent Award 2004 should be terminated in light of the application. The Commission needed to assess the merits of the application and the implications of terminating the existing award.

The Fair Work Commission found that the application did not meet the necessary criteria for a modern enterprise award. Consequently, the application was dismissed, and the Murray Irrigation Limited Consent Award 2004 was terminated. The Commission concluded that the application did not sufficiently address the requirements for a modern enterprise award, and therefore, the existing award remained in effect until such time as a compliant application was made.

The Fair Work Commission ordered the dismissal of the application and the termination of the Murray Irrigation Limited Consent Award 2004. This decision left the existing award in place pending a future application that met the statutory requirements for a modern enterprise award.

Orders