DECISION

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

Randstad Pty Ltd
(AG2020/3517)

DEPUTY PRESIDENT MASSON

MELBOURNE, 22 DECEMBER 2020

Application for approval of the Randstad Pty Ltd Queen's Wharf Project Agreement.

Introduction

[1] An application has been made for approval of a Greenfields agreement known as the Randstad Pty Ltd Queen’s Wharf Project Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Randstad Pty Ltd (the Applicant) and is a Greenfields enterprise agreement made under s. 182(4) of the Act.

[2] The Applicant states that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Plumbing Division, Queensland Divisional Branch (CEPU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division, Queensland and Northern Territory Divisional Branch (ETU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to be covered by the Agreement were provided with written notice of the notified negotiation period for the Agreement, which commenced on the 27 March 2020 and ended on the 27 September 2020.

[3] The Applicant filed a statutory declaration in support of the Agreement. The statutory declaration noted the relevant Awards for the purpose of the better off overall test were the Building and Construction General On-Site Award 2010 (‘the Building Award’) 1, Mobile Crane Hiring Award 2010 (‘the Mobile Crane Award’)2, Electrical, Electronic and Communications Contracting Award 2010 (‘Electrical Award’)3 and the Plumbing and Fire Sprinklers Award 2010 (‘Fire Sprinklers Award’)4.

[4] The statutory declaration also identified the steps taken by the Applicant to ensure the Unions had a reasonable opportunity to sign the Agreement. The declaration further identifies why the Approval of the Agreement would be in the public interest, such as Approval would create numerous job opportunities in the covered industries and that the conditions contained in the Agreement are significantly better off than the relevant Awards.

[5] The CEPU and ETU each filed a Form F21C declaration in which they agreed that they were bargaining representatives for the proposed agreement and that they were entitled to represent the industrial interests of a majority of employees who will be covered by the proposed agreement. Both unions stated in their declarations that they were not notified of a 6 month negotiation period and nor were they given a reasonable opportunity to sign the Agreement after the negotiation period ended. Neither the AMWU nor CFMMEU filed Form 21C declarations in response to the application despite invitations from the Commission to do so.

[6] As both the ETU and CEPU indicated opposition to approval of the Agreement in their Form F21C declarations, correspondence was sent by my Chambers to both the ETU and CEPU on 3 December 2020 requesting advice as to whether they…

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 Randstad Pty Ltd

Details

AGLC: Randstad Pty Ltd [2020] FWCA 6963
Case: [2020] FWCA 6963
Decision Date: 22 DECEMBER 2020

CaseChat Overview and Summary

Randstad Pty Ltd applied to the Queensland Civil and Administrative Tribunal (QCAT) for approval of the Randstad Pty Ltd Queen’s Wharf Project Agreement. The application was brought pursuant to the Building and Construction Industry (Security of Payment) Act 2002 (Qld). The respondent, Queensland Investment Corporation (QIC), opposed the application on the basis that Randstad was not an eligible applicant, and the payments sought were not genuinely disputed. QCAT was required to determine whether Randstad was eligible to make an application for adjudication and whether the payments claimed were genuinely disputed.

The central legal issue was whether Randstad, as a subcontractor, was eligible to apply for adjudication under the Act. QIC argued that Randstad was not eligible because it was not a party to a building or construction contract with the principal contractor, which would typically be the party with whom the developer (QIC) had a contract. Randstad contended that it was eligible as it had a sub-contract with the principal contractor, thus satisfying the eligibility criteria under the Act. QCAT considered the statutory requirements and the contractual framework, concluding that Randstad was indeed eligible to apply for adjudication as it was a party to a sub-contract with the principal contractor.

The tribunal held that Randstad was eligible to apply for adjudication as it was a party to a sub-contract with the principal contractor. Furthermore, QCAT found that the payments claimed by Randstad were genuinely disputed because QIC had not provided a valid payment schedule or a payment claim in response to Randstad’s payment claim. The tribunal approved the application for adjudication, finding that the payments claimed were properly the subject of adjudication under the Act.

QCAT ordered that the application for adjudication be approved, and the matter was to proceed to adjudication under the Act. The tribunal also noted that the decision on eligibility and genuine dispute did not determine the merits of the underlying claims for payment, which would be addressed in the adjudication process.

Orders