DECISION

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

Q.H.& M. Birt Pty Ltd
(AG2019/813)

DEPUTY PRESIDENT BOYCE

SYDNEY, 22 NOVEMBER 2019

Application for approval of the Q H & M Birt Pty Ltd Enterprise Agreement 2019 — proposed enterprise agreement does not pass the better off overall test — proposed undertakings will result in substantial changes to the agreement – no genuine agreement – application dismissed

[1] An application has been made for approval of an enterprise agreement to be known as the Q H & M Birt Pty Ltd Enterprise Agreement 2019 (Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the employer, Q H & M Birt Pty Ltd (Applicant). The Agreement is a single enterprise agreement.

[2] On 26 June 2019, I granted permission, pursuant to s.590 of the Act, for the Australian Workers’ Union (AWU), to make submissions in respect of its assertions that the Agreement does not pass the “better off overall test” (BOOT).

[3] I later granted permission, pursuant to s.590 of the Act, for the Construction Maritime Mining Energy Union (CFMMEU), to make submissions opposing the approval of the Agreement.

[4] On 22 October 2019, I convened a hearing to hear argument as to the approval of the Agreement. At that hearing, Mr Richard Cunningham (Solicitor, Thomas Geer Lawyers) appeared (with permission) on behalf of the Applicant. Mr Alistair Sage (Senior Legal Officer) appeared for the AWU. Mr Ben Kruse (Legal/Industrial Officer) appeared for the CFMMEU.

[5] At the hearing, the Applicant accepted that a range of issues, which were identified by the Unions and the Commission, resulted in the Agreement not meeting the BOOT (in comparison to the terms and conditions set out in the Building and Construction Industry General On-site Award 2010) (Award)).

[6] Post the hearing, the Applicant provided draft undertakings that it is prepared to proffer to overcome identified BOOT deficiencies (undertakings). Those undertakings are set out at Annexure A to this decision.

[7] Section 190 provides that the Commission may approve an enterprise agreement with undertakings:

“190 FWC may approve an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of an enterprise agreement has been made under section 185; and

(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.

Undertakings

(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting…

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: [2019] FWC 7975
Decision Date: 22 NOVEMBER 2019

CaseChat Overview and Summary

Q.H.& M. Birt Pty Ltd was a case before the Fair Work Commission, where the applicant sought approval of the Enterprise Agreement 2019. The applicant argued that the proposed agreement was fair and reasonable and should be approved. The dispute centred around the content of the proposed agreement and whether it complied with the statutory requirements for an enterprise agreement.

The legal issues before the Commission included whether the proposed agreement passed the better off overall test, which required that the employees be at least as well off under the agreement as they would be without it. Additionally, the Commission had to determine whether the proposed undertakings would result in substantial changes to the agreement and whether there was a genuine agreement between the parties. The Commission also had to consider whether the agreement was in the best interests of the employees and the employer.

After considering the submissions and evidence from both parties, the Commission found that the proposed agreement did not pass the better off overall test and that the proposed undertakings would result in substantial changes to the agreement. The Commission also found that there was no genuine agreement between the parties and that the agreement was not in the best interests of the employees or the employer. Therefore, the Commission dismissed the application for approval of the Enterprise Agreement 2019.

Orders