[2018] FWC 2886 [Note: An appeal pursuant to s.604 (C2018/3167) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Phabcast Pty Ltd
(AG2017/6736)

COMMISSIONER MCKINNON

MELBOURNE, 22 MAY 2018

Application for approval of the Phabcast Enterprise Agreement 2017.

Introduction

[1] Application has been made for approval of a single enterprise agreement known as the Phabcast Enterprise Agreement 2017 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act) by Phabcast Pty Limited (Phabcast).

[2] The application is opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and The Australian Workers’ Union (AWU). Neither the CFMMEU nor the AWU are bargaining representatives in relation to the Agreement.

[3] This decision sets out my preliminary findings in relation to the application for approval of the Agreement. It also deals with two applications for Orders to Produce made by the CFMMEU.

Background

[4] The Agreement was lodged with the Commission for approval on 22 December 2017.

[5] On 23 March 2018, the AWU sought to be heard in relation to the Agreement. On 26 March 2018, the CFMMEU made a request to make submissions in relation to the Agreement. Both the AWU and the CFMMEU sought access to documents filed in support of the application. The F16 and F17 forms in relation to the Agreement were provided to each union on 28 March 2018.

[6] On 6 April 2018, the CFMMEU advised the Commission it had “grave concerns” about the application arising from documents filed with the application and sought to be heard. It filed submissions detailing concerns about compliance with a pre-approval step, whether employees were fairly chosen and whether the Agreement was genuinely agreed.

[7] On 6 April 2018, the AWU made submissions in relation to the Agreement including about compliance with the same pre-approval step identified by the CFMMEU, the Agreement being a “sham”, and whether it was genuinely agreed. It said it was denied the opportunity to negotiate in relation to the Benalla site.

[8] On 9 April 2018, Phabcast filed a revised Form F17 statutory declaration dealing with the pre-approval step identified by the CFMMEU as a concern.

[9] On 16 April 2018, the CFMMEU made application for two Orders to Produce; one against Phabcast and one against Lima South Quarry Pty Ltd.

[10] The matter was listed for hearing on 24 April 2018. The unions both sought an adjournment due to unavailability and Phabcast, which initially opposed any adjournment, subsequently supported that course and advised no urgency in relation to the application. On that basis, the hearing was vacated pending Phabcast’s response to the materials filed by the CFMMEU and the AWU.

Pre-approval steps

“Misleading” Notice

[11] The CFMMEU submits that the Notice of Employee Representational Rights issued in relation to the Agreement (the Notice) was misleading to employees because it refers to Phabcast’s “Murray Road, Benalla” site, which does not exist.

[12] The Act does not limit the coverage of enterprise agreements…

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 Phabcast Pty Ltd

Details

AGLC: Phabcast Pty Ltd [2018] FWC 2886
Case: [2018] FWC 2886
Decision Date: 22 MAY 2018

CaseChat Overview and Summary

Phabcast Pty Ltd is a company that recently sought approval of a new enterprise agreement. The dispute was heard by the Fair Work Commission (FWC). The application for the approval of the Phabcast Enterprise Agreement 2017 was brought before the FWC by the company. The agreement was entered into by the employer and the union representing the employees.

The central legal issues before the FWC were whether the agreement was genuinely negotiated, whether it complied with the Fair Work Act 2009, and whether it met the 'better off overall test'. The 'better off overall test' requires that the employees are not worse off under the new agreement compared to the previous one. The FWC considered the evidence provided by both parties and the terms of the agreement.

After reviewing the evidence and the agreement, the FWC determined that the agreement was genuinely negotiated and met the requirements of the Act. The commission found that the agreement was fair and reasonable and that employees would be better off overall under the new terms. The FWC approved the Phabcast Enterprise Agreement 2017, noting the improvements in pay and conditions for the employees. The FWC's decision was based on the thorough examination of the negotiation process, compliance with the relevant legislation, and the overall benefit to the employees.

Orders