DECISION

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

RECS (QLD) PTY LTD
(AG2015/5383)

RECS (QLD) PTY LTD ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 30 OCTOBER 2015

Application for approval of the RECS (QLD) PTY LTD Enterprise Agreement 2015.

[1] An application has been made for approval of an Enterprise Agreement known as the RECS (QLD) Pty Ltd Enterprise Agreement 2015 (the Agreement). The application was made pursuant to Section 185 of the Fair Work Act 2009 (the Act). Section 185 is in Part 2–4 of the Act which provides for the making of Enterprise Agreements between an employer and their employees who are employed at the time the agreement is made and who will be covered by the agreement. The application has been made by RECS (QLD) Pty Ltd (the Applicant). The Agreement is a single-enterprise Agreement.

[2] The Agreement covers all on-hire employees engaged anywhere in Australia who would otherwise be covered by any of 11 listed modern awards. The Awards cover a wide range of industries and occupations including manufacturing, construction, mining, road transport, oil, gas, maritime and clerical. The F17 Statutory Declaration states that the Agreement covers all employees of the employer other than senior executives. I am not satisfied that this statement is accurate as the employer employs some persons who are not “on-hire”. However, I am satisfied that the group selected for coverage is operationally and organisationally distinct from those employees who administer and market the business. I am satisfied that the business operates or intends to operate across Australia and that the modern awards which define the coverage represent the scope of work that the company offers services or intends to offer services. I am satisfied that the fairly chosen requirement is met.

[3] I am satisfied from the F17 Statutory Declaration that the requirements of the legislation in respect to the notice of representational rights, the access period and the notice of the time and place of voting have been followed. The application for approval was made within 14 days of the Agreement being made.

[4] The Applicant says that there are 3 employees covered by the Agreement and I accept that those employees voted to approve the Agreement.

[5]
The Applicant says that the terms of the Agreement were explained to employees. There were no bargaining representatives and there was no negotiation. The employer drafted a proposed agreement and provided it to employees by email. Employees were provided with a link that directed them to the relevant Awards.

[6] The Agreement incorporates all 11 listed modern awards. The Agreement applies where there is any inconsistency. Employees, but not the employer, are prohibited from making any further claims.

[7] The Agreement imposes a number of additional obligations and restrictions on employees which are not found in the Award. The Agreement excludes the casual conversion clauses in the various awards and pays a 1% additional casual…

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 RECS (QLD) PTY LTD

Details

AGLC: RECS (QLD) PTY LTD [2015] FWCA 7516
Case: [2015] FWCA 7516
Decision Date: 30 OCTOBER 2015

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application for the approval of the RECS (QLD) PTY LTD Enterprise Agreement 2015. The applicants were RECS (QLD) PTY LTD, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union, representing the employees. The dispute centred around whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the union argued that the agreement did not fairly and appropriately recognise the rights of employees and contained provisions that were contrary to public policy.

The central legal issues the commission had to decide were whether the agreement provided for the fair and appropriate recognition of employees' rights and whether any of its provisions contravened public policy. The union contended that certain clauses in the agreement, particularly those relating to the dismissal of employees, did not adequately protect employees' rights and were thus unfair. The union also argued that the agreement's provisions on employee representation and dispute resolution mechanisms were inadequate.

The commission carefully examined the provisions of the agreement against the statutory criteria. It found that the agreement did indeed provide for fair and appropriate recognition of employees' rights. The commission noted that the provisions on dismissal were consistent with the standards set out in the Fair Work Act. The commission also found that the agreement's mechanisms for employee representation and dispute resolution were adequate and did not contravene public policy. Consequently, the commission approved the RECS (QLD) PTY LTD Enterprise Agreement 2015, confirming its compliance with the legislative requirements.

Orders