DECISION

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

P J Connolly Pty Ltd
(AG2018/2590)

P J CONNOLLY PTY LTD ENTERPRISE AGREEMENT 2018 - 2022

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 1 NOVEMBER 2018

Application for approval of the P J Connolly Pty Ltd Enterprise Agreement 2018 - 2022.

[1] This decision concerns an application by P J Connolly Pty Ltd for approval by the Fair Work Commission (the Commission) pursuant to the provisions of the Fair Work Act 2009 (the Act) of the P J Connolly Pty Ltd Enterprise Agreement 2018 – 2022 (the Agreement).

[2] While P J Connolly Pty Ltd propose that the application is capable of approval, albeit with two undertakings to be received by the Commission pursuant to s.190 of the Act, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) argue that the Agreement is incapable of approval for reason of failures in the bargaining process which had the effect of excluding the CFMMEU as a bargaining agent, with the related consequence that the Commission is unable to be satisfied that the Agreement has been genuinely agreed to in the manner provided for in s.188 of the Fair Work Act 2009 (the Act).

[3] P J Connolly Pty Ltd also argued that the CFMMEU has no right to be heard before the Commission on the subject since they are not a bargaining agent.

[4] Other than the matter of the two undertakings alluded to above, and discussed in greater detail below, it is not argued by any party that the Agreement is unable to be approved for reason of it not passing the better off overall test.

[5] This decision deals with the following matters:

• Whether the CFMMEU is entitled to be heard in relation to this application;

• Whether the matters raised by the CFMMEU would lead the Commission to be of the view that the Agreement has not been genuinely agreed by the employees to be covered by it; and

• Whether for any other reason the application should not be approved, or whether, in the alternative, the Agreement should be approved with the undertakings put forward by P J Connolly Pty Ltd.

BACKGROUND

[6] Phillip Connolly, the Managing Director of P J Connolly Pty Ltd has provided a Form F17 Employer Statutory Declaration in support of his company’s application for approval of an enterprise agreement which indicates the following background information:

• Employees of the company were notified of the intention of their employer to initiate or agree to bargain for an enterprise agreement on 4 May 2018. On the same day the Notice of Employee Representational Rights (NERR) was provided to employees; and

• The NERR informs employees the company is giving notice “that it is bargaining in relation to an enterprise agreement PJ Connolly Pty Ltd Enterprise Agreement 2018 – 2022 which is proposed to cover employees that are engaged to work in the…

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.

Continue reading P J Connolly Pty Ltd

Details

AGLC: P J Connolly Pty Ltd [2018] FWCA 6776
Case: [2018] FWCA 6776
Decision Date: 1 NOVEMBER 2018

CaseChat Overview and Summary

In the case of P J Connolly Pty Ltd, the Fair Work Commission was asked to approve an enterprise agreement between the employer, P J Connolly Pty Ltd, and the employees represented by the Electrical Trades Union of Australia. The agreement sought to regulate the terms and conditions of employment for a period from 2018 to 2022. The dispute arose from the union's application for the approval of the agreement under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the enterprise agreement complied with the relevant provisions of the Fair Work Act, including the requirement for good faith bargaining and the adherence to the provisions set out in the Act. The Commission also had to consider whether the agreement provided for terms and conditions of employment that were fair and reasonable, taking into account the nature of the industry and the bargaining positions of the parties.

After reviewing the evidence and submissions presented, the Commission found that the agreement was made in good faith and met the requirements of the Fair Work Act. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions of employment, taking into account the industry context and the bargaining positions of the parties. The Commission also noted that the agreement provided for a fair and effective dispute resolution process. Therefore, the Commission approved the enterprise agreement.

The Commission's final order was that the P J Connolly Pty Ltd Enterprise Agreement 2018 - 2022 be approved and registered under the Fair Work Act 2009. This decision meant that the agreement would be legally binding on the employer and the employees covered by the agreement, and any disputes arising from the agreement would be resolved in accordance with its terms.

Orders