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OS MCAP Pty Ltd T/A OS MCAP Pty Ltd

OS MCAP Pty Ltd T/A OS MCAP Pty Ltd

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[2020] FWC 398

The attached document replaces the document previously issued with the above code on 24 January 2020.

The document has been edited to replace and/or insert missing words:

Paragraph [1] – replace the “for” with the word “with”.

Paragraph [14(c)] – insert the word “Production” before the word “Agreement”.

Paragraph [50] – insert the words “proposed enterprise agreements” and delete the word “Agreement”.

Paragraph [60] – insert the word “to” before the word “approve”.

Paragraph [62] – insert the word “matters” after the word “additional”.

Paragraph [83(d)] – insert the words “engaged on” before the word “sites”.

Paragraph [113(b)] – insert the word “been” before the word “reasonable”.

Paragraph [129] – insert the word “arising” before the word “under”.

Paragraph [130] – insert the words “proposed enterprise agreements” and delete the word “Agreement”.

Paragraph [160(f)] – insert the word “employees” after the number “16” and delete the word “Agreement”.

Minor typographical errors amended at paragraphs [13(a)], [19], [22], [26(b)], [26(e)], [54], heading of table below [59], [66], [75(f)], [75(g)], table below paragraph [99], [113(d)], [116], [126(a)], [126(b)], [153], [157], and [158].

Associate to Deputy President Boyce

Dated 28 January 2020

[2020] FWC 398

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

OS MCAP Pty Ltd T/A OS MCAP Pty Ltd
(AG2018/5649)

OS ACPM Pty Ltd T/A OS ACPM Pty Ltd
(AG2018/6025)

DEPUTY PRESIDENT BOYCE

SYDNEY, 24 JANUARY 2020

Application for approval of the Operations Services Production Agreement 2018 - Unions a stranger to bargaining – Unions a stranger to workplace – Unions request to be heard generally under s.590 of Fair Work Act 2009 – compliance with s.180(5), all reasonable steps, genuine agreement, better off overall test.

Application for approval of the Operations Services Maintenance Agreement 2018 - Unions a stranger to bargaining – Unions a stranger to workplace – Unions request to be heard generally under s.590 of Fair Work Act 2009 – compliance with s.180(5), all reasonable steps, genuine agreement, better off overall test.

Overview

[1] These reasons are to be read in conjunction with my decisions in [2019] FWCA 8601 and [2019] FWCA 8595.

[2] On 8 October 2018, OS MCAP Pty Ltd (Applicant) filed an application for approval of the Operations Services Production Agreement 2018 (Production Agreement) pursuant to s.185 of the Fair Work Act 2009 (Act). The Production Agreement is a single enterprise agreement.

[3] On 26 October 2018, OS MCAP Pty Ltd (Applicant) filed an application for approval of the Operations Services Maintenance Agreement 2018 (Maintenance Agreement) pursuant to s.185 of the Act. The Maintenance Agreement is a single enterprise agreement.

[4] On 12 February 2019, I made a direction that the applications for approval of the Production Agreement and the Maintenance Agreement were to be heard and determined together.

[5] At the hearing, Mr Ian Neil of Senior Counsel, and Mr Yaseen Shariff of Counsel, instructed by Herbert Smith Freehills lawyers, appeared with permission on behalf…

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: [2020] FWC 398
Decision Date: 24 JANUARY 2020

CaseChat Overview and Summary

OS MCAP Pty Ltd, trading as OS MCAP Pty Ltd, applied for approval of an operations services production agreement under the Fair Work Act 2009. The application involved unions that were not parties to the bargaining process and did not represent the employees in the workplace. The unions sought to be heard on the application under section 590 of the Act. The central legal issues revolved around whether the Fair Work Commission had jurisdiction to hear the unions' request and whether the application met the statutory requirements for approval, including compliance with section 180(5), the genuine agreement, and the better off overall test.

The Fair Work Commission considered whether it had jurisdiction to entertain the unions' request to be heard under section 590 of the Act, given that the unions were neither parties to the agreement nor representatives of the employees. The Commission noted that the unions, despite not being directly involved in the bargaining process, had an interest in the outcome of the application due to the potential impact on employees. The Commission found that the unions' request to be heard was permissible under the Act. Turning to the merits of the application, the Commission examined whether the agreement complied with section 180(5) of the Act, which requires all reasonable steps to be taken to reach a genuine agreement and whether the agreement would leave employees better off overall. The Commission concluded that the agreement met the statutory requirements and was in compliance with the Act.

The Fair Work Commission determined that it had jurisdiction to hear the unions' request to be heard on the application. It further found that the application complied with the statutory requirements, including all reasonable steps to reach a genuine agreement and the better off overall test. The Commission approved the operations services production agreement, finding it met the criteria set out in the Fair Work Act 2009. The unions' request to be heard was granted, and their concerns were considered in the decision-making process.

Orders