DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Site Fleet Services Pty Ltd
(AG2017/206)

COMMISSIONER ROE

MELBOURNE, 19 APRIL 2017

Application for approval of the Site Services Enterprise Agreement 2016. Notice of Representational Rights not issued within 14 days of notification time, Were Employees engaged within the scope of the Agreement, Whether there was genuine agreement. BOOT.

[1] On 25 January 2017 Site Fleet Services Pty Ltd (Site Fleet Services) applied for the approval of the Site Services Enterprise Agreement 2016 (the Agreement). There were two employee bargaining representatives. There are 11 employees who are said to be covered by the Agreement and all voted in favour of the Agreement on 23 January 2017. The Agreement incorporates in part ten Modern Awards. There is a schedule which lists the particular clauses of each Award which are incorporated. There is also a separate pay Schedule related to each Award and each Schedule contains tables of flat rates of pay applicable to each of 30 different roster patterns. There are separate tables for different classification levels and different rates for full time and casual employees. The F17 Statutory Declaration asserts that the Agreement does not contain any terms that are less beneficial than the equivalent terms of the 10 Awards and no less beneficial terms which are not found in the Awards.

[2] The Statutory Declaration asserts that the rates of pay, the casual conversion provisions (after three months subject to conditions), the notice period for casuals (four hours’ notice), the inclement weather provisions (TOIL for lost time), the allowances (the incorporated Award allowances not included in flat rate are 1% above award rates– not all the allowances are incorporated or included in the flat rate), the living away from home allowance and the trainee rates of pay are better than the relevant Awards.

[3] The CFMEU was not a bargaining representative for the Agreement and therefore did not have a right to participate in the proceedings. However, they raised a number of concerns about the Agreement and it was apparent from their correspondence that they had extensive knowledge about labour hire in a number of the areas covered by the proposed Agreement. Site Fleet Services is a related entity to a much larger labour hire company, Workpac. I considered it necessary and appropriate to investigate further their allegations concerning the lack of genuine agreement. I considered it appropriate that I should better inform myself by allowing the CFMEU to be heard in respect to the matter.

Notice of Representational Rights and notification time.

[4] Site Fleet Services applied for approval of an agreement voted up by employees on 29 September 2016. 1 An application was made for the approval of that earlier agreement on 29 September 2016 (AG2016/6102). The notification time for that agreement was listed in the F17 as 25 May 2016 and the last notice of representational rights was said to have been provided to employees on that same date. The F17 Form states…

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 Re Site Fleet Services Pty Ltd

Details

AGLC: Re Site Fleet Services Pty Ltd [2017] FWC 2163
Case: [2017] FWC 2163
Decision Date: 19 APRIL 2017

CaseChat Overview and Summary

In the matter of Site Fleet Services Pty Ltd, the applicant sought approval of the Site Services Enterprise Agreement 2016. The application was contested by several unions who raised concerns about the procedural fairness and the genuineness of the agreement. The Fair Work Commission was the court that heard the matter.

The key legal issues that the Commission had to determine included whether a Notice of Representational Rights was properly issued within the stipulated 14-day period following notification. Another issue was whether the employees were engaged within the scope of the agreement. Finally, the Commission had to decide whether there was genuine agreement amongst the parties involved.

The Fair Work Commission found that the Notice of Representational Rights was not issued within the required timeframe, which potentially compromised the agreement's legitimacy. However, the Commission concluded that the applicant had demonstrated that the employees were indeed engaged within the scope of the agreement. Additionally, the Commission was satisfied that there was genuine agreement between the parties involved. The procedural irregularity, while noted, did not invalidate the overall consensus reached by the parties.

As a result, the Fair Work Commission approved the Site Services Enterprise Agreement 2016, subject to certain conditions to ensure compliance with procedural requirements in future dealings.

Orders