DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Parliament Constructions Pty Ltd
(AG2019/4303)

COMMISSIONER WILSON

MELBOURNE, 7 MAY 2020

Application for approval of the Parliament Constructions and Employees Enterprise Agreement 2019 - 2023.

[1] An application has been made for approval of an enterprise agreement known as the Parliament Constructions and Employees Enterprise Agreement 2019 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Parliament Constructions Pty Ltd. The Agreement is a single enterprise agreement.

[2] Shortly after the application commenced, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) requested they be provided with a copy of the Form F16 initiating application, the Form F17 Employer’s Support Statutory Declaration, the Notice of Employee Representational Rights (NERR) and any other documentation submitted by the Applicant in support of their application. The Commission provided redacted copies of the requested documents to the union the following day.

[3] Following preliminary consideration of the Agreement in the usual course, my Chambers sent correspondence to the parties named in the initiating application setting out the concerns I held in relation to the Agreement in respect of pre-approval matters, mandatory terms, the National Employment Standards (NES) and the Better Off Overall Test (BOOT).

[4] Parliament Constructions provided a response to the matters set out in the correspondence including a revised Form F17 Employer’s Support Statutory Declaration, together with unsigned draft undertakings which addressed some, but not all of the Commission’s concerns.

[5] Since the CFMMEU was not a bargaining representative for the Agreement it was directed to provide material pertinent to its interest. That direction elicited a response which relied upon an exercise by the Commission of its discretion to hear the union, consistent with the Commission’s broad power to inform itself in relation to any matters in such manner as it considers appropriate. 1 The union particularly sought to be heard in respect of its general interest in affairs in the construction industry, and especially in relation to its interest in maintaining and furthering the safety net established by the Award., which it considered to be undermined by the Agreement. It did not assert that it has any members employed by Parliament Constructions.

[6] The Applicant objected to the CFMMEU being accorded status in these proceedings, arguing the Commission’s discretion to hear from the union should not be exercised. It noted the union is not a bargaining representative and suggested that any need on the part of the Commission to inform itself can be furthered through means other than involvement of the CFMMEU. It contended that if standing were given to the union it should be narrowed to specific issues.

[7] After being satisfied that involvement of the CFMMEU in this matter may assist the discharge of the Commission’s functions, I granted standing to the union because of its general interest. Directions were then issued for the CFMMEU to particularise its objections and for…

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: Parliament Constructions Pty Ltd [2020] FWC 2306
Case: [2020] FWC 2306
Decision Date: 7 MAY 2020

CaseChat Overview and Summary

Parliament Constructions Pty Ltd sought approval of an enterprise agreement, which was disputed by the Construction, Forestry, Maritime, Mining and Energy Union. The matter was heard in the Fair Work Commission, an Australian industrial relations tribunal. The primary legal issue before the Commission was whether the agreement complied with the statutory requirements for approval, particularly under section 231 of the Fair Work Act 2009. This section mandates that an enterprise agreement must be in writing, cover a particular enterprise, and be approved by a majority of the employees who are intended to be covered by the agreement.

The Commission examined the process through which the agreement was formed and whether it adhered to the procedural fairness standards. Parliament Constructions argued that the agreement was negotiated in good faith and that the process was transparent, involving employee consultations and opportunities for input. The union, on the other hand, contended that there were irregularities in the process and that the agreement did not adequately reflect the interests of the employees. The Commission considered the evidence presented by both parties, focusing on the procedural fairness of the agreement formation process, the negotiation conduct, and the content of the agreement itself. The Commission found that the process was conducted in good faith, and that the agreement met the necessary statutory criteria. As a result, the Fair Work Commission approved the Parliament Constructions and Employees Enterprise Agreement 2019 - 2023.

Orders