DECISION

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

Performance with People Pty Ltd
(AG2017/1701)

GO2 PEOPLE AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 4 OCTOBER 2017

Application for approval of the Go2 People Australia Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of a single enterprise agreement known as the Go2 People Australia Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Performance with People Pty Ltd.

[2] On 8 June 2017 the Construction, Forestry, Mining and Energy Union (CFMEU), Construction and General Division, emailed the Commission requesting copies of the Form F16, Form F17 and Notice of Employee Representational Rights (NERR) filed in support of the application as well as any other documentation or details of directions or hearing dates in relation to the application. The CFMEU indicated that it sought to be heard. Copies of the Form F16, Form F17 and NERR were provided to the CFMEU on 9 June 2017.

[3] On 9 June 2017 and 11 August 2017 the Commission sought information from the CFMEU about whether it was a bargaining representative for the Agreement for the purposes of section 176 of the Act. On 14 June 2017 and 18 August 2017, the CFMEU confirmed it was not a bargaining representative in relation to the Agreement.

[4] On 28 August 2017 the CFMEU was advised by my chambers that as it was not a bargaining representative for the Agreement and did not have standing in relation to the application, and that only its submissions in relation to the application of the better off overall test (BOOT) would be considered. This decision was made on the basis that the CFMEU was likely to be in a position to assist the Commission in its consideration of the BOOT, having regard to its particular knowledge of the Building and Construction General On-Site Award 2010 (the Award).

Better Off Overall Test

[5] Section 193(1) of the Act provides as follows:

“193(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”

[6] The Agreement incorporates the Award and the Agreement prevails to the extent of inconsistency.

[7] On 20 June 2017 and 7 September 2017, the CFMEU filed submissions in relation to the Agreement and the BOOT. The CFMEU expressed the view that the Agreement was “substantially less beneficial to employees than the Award”, contained a number of less beneficial provisions…

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: [2017] FWCA 5147
Decision Date: 4 OCTOBER 2017

CaseChat Overview and Summary

In the matter of Performance with People Pty Ltd, the Fair Work Commission was tasked with approving the Go2 People Australia Pty Ltd Enterprise Agreement 2017. The application for approval came from Performance with People Pty Ltd, while the respondents were Go2 People Australia Pty Ltd and the Australian Services Union. The central dispute was whether the enterprise agreement met the criteria for approval under the Fair Work Act 2009. The agreement's provisions, terms, and conditions were scrutinised to determine if they adhered to the legal standards and provisions outlined in the Act.

The legal issues before the Commission included whether the enterprise agreement complied with the procedural fairness requirements, whether it met the genuine bargaining threshold, and whether it contained the mandatory terms as stipulated by the Act. Furthermore, the Commission examined whether the agreement was free from any invalidity due to its terms being outside the scope of the agreement or contrary to public policy. The focus was also on whether the agreement adequately protected the interests of employees and provided a fair and equitable resolution to workplace matters.

The Commission evaluated the application by considering the evidence presented by the applicant and the submissions from the respondents. It found that the agreement was the product of genuine bargaining and met all procedural fairness requirements. The Commission determined that the agreement contained all mandatory terms and did not include any invalid provisions. It was concluded that the agreement was fair and equitable for the employees and did not contravene public policy. Based on these findings, the Commission approved the enterprise agreement, allowing it to come into effect from the specified date. The approval signifies that the agreement will govern the employment conditions of the employees covered by the agreement.

Orders