DECISION

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

Prime Projects (NSW) Pty Ltd
(AG2018/424)

THE PRIME GROUP COLLECTIVE AGREEMENT 2017-2021

DEPUTY PRESIDENT COLMAN

MELBOURNE, 1 MAY 2018

Application for approval of the Prime Group Collective Agreement 2017-2021

[1] This decision concerns an application by Prime Projects (NSW) Pty Ltd for approval of an enterprise agreement known as The Prime Group Collective Agreement 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act) and relates to a single-enterprise agreement. In addition to the applicant company, the Agreement will cover Prime Constructions Pty Ltd, a related body corporate of the applicant. The two companies are therefore ‘single interest employers’ for the purposes of s.172(5).

[2] On 12 February 2018, the Commission received an email communication from the Construction, Forestry, Mining and Energy Union (I will refer to the now merged entity, the CFMMEU) requesting copies of the application and accompanying materials. The Commission provided the union with the documentation on 15 February 2018, consistent with the decision of the Full Bench in CFMEU v Ron Southon Pty Ltd. 1

[3] On 16 February 2018, the CFMMEU advised the Commission and the company of a concern that the Agreement contained references to the union, but that it had not been involved in the negotiations for the Agreement, was not a bargaining representative, and did not otherwise support the Agreement. The union contended that it had an interest in the matter and wished to be heard in relation to its concern.

[4] The Commission has a broad power to inform itself in relation to any matter, in such manner as it considers appropriate, including by inviting oral or written submissions from a person or organisation (s.590). 2 Although the CFMMEU was not a bargaining representative for the Agreement, I determined that it was reasonable and appropriate to afford the union an opportunity to be heard in relation to its concern, and that my consideration of the application for approval of the Agreement would be assisted by taking into account its submissions.

[5] On 19 March 2018, the CFMMEU provided to the Commission written submissions contending that, because of the references to the union in the Agreement, the approval requirements in the Act had not been met, and that the Commission should dismiss the application for approval of the Agreement. The union submitted that the Commission could not be satisfied that the Agreement was genuinely agreed, and that the references to the union constituted unlawful terms, such that the Agreement could not be approved.

[6] On 3 April 2018, the Master Builders Association, on behalf of the companies, provided to the Commission written submissions in response to those of the CFMMEU. It contended that the references in the Agreement to the CFMEU were simply a mistake and that this did not affect the genuineness of employees’ agreement, or otherwise constitute an impediment to the Commission’s…

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 Prime Projects (NSW) Pty Ltd

Details

AGLC: Prime Projects (NSW) Pty Ltd [2018] FWCA 2360
Case: [2018] FWCA 2360
Decision Date: 1 MAY 2018

CaseChat Overview and Summary

Prime Projects (NSW) Pty Ltd applied to the Fair Work Commission for approval of the Prime Group Collective Agreement 2017-2021. The dispute was between the applicant, an employer, and the Building, Construction, Forestry and Energy Union (BCFEU), representing the employees. The Commission's role was to determine whether the agreement complied with the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement met the procedural requirements for approval and whether it contained appropriate protections for employees, including minimum wage rates, leave entitlements, and other conditions of employment. The BCFEU argued that the agreement did not adequately protect employee rights and did not comply with certain procedural requirements.

The Commission found that while there were procedural shortcomings, the agreement was generally fair and balanced. The Commission noted that the parties had made efforts to reach an agreement through negotiation and that the agreement provided for reasonable terms and conditions of employment. The Commission also found that the agreement contained appropriate protections for employees, including minimum wage rates and leave entitlements. The Commission approved the agreement, subject to certain modifications to address the procedural issues raised by the BCFEU.

The Commission's decision was that the Prime Group Collective Agreement 2017-2021 was approved, subject to certain modifications to address the procedural issues raised by the BCFEU. The modifications included the requirement for the parties to provide additional information to the Commission and to undertake further consultation with employees. The Commission also noted that the agreement would be subject to ongoing review and that any disputes arising under the agreement would be resolved through the Commission's dispute resolution processes.

Orders