DECISION

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

Rigforce Pty Ltd T/A Rigforce
(AG2019/835)

COMMISSIONER LEE

MELBOURNE, 9 APRIL2020

Application for approval of the RFD Enterprise Agreement 2019 - remitted from Full Bench after appeal upheld due to failure to comply with s.180(5) - genuine agreement concern-consideration of whether s.188(2) can overcome the concern-whether there are consequences for Commissions satisfaction under s. 188(1)(c) - whether proposed s.190 undertaking meets the concern - undertaking does not meet the genuine agreement concern - application dismissed.

Introduction and Background

[1] The application for approval of the RFD Enterprise Agreement 2019 (the Agreement) was made on 21 March 2019 by Rigforce Pty Ltd T/A Rigforce (the Applicant). The application was allocated to me. I determined I was satisfied that the requirements in s. 186, 187 and 188 were met and subsequently approved the Agreement on 5 April 2019.

[2] Subsequent to my decision to approve the Agreement, the Australian Workers’ Union (AWU) appealed the decision to approve the Agreement on a number of grounds. By a decision dated 23 October 2019, a Full Bench of the Fair Work Commission granted the AWU an extension of time to lodge the appeal, granted permission to appeal in relation to Ground 1 of the AWU’s Notice of Appeal, and upheld Ground 1 on the basis that the Applicant’s explanation of the Agreement’s rates of pay as they compared with the predecessor agreement was incorrect. In the circumstances, the Full Bench determined that the conclusion that s.180(5) was complied with was unavailable. The Full Bench determined that:

“[42] In circumstances where there was a failure to comply with s 180(5), it was not jurisdictionally available to the Commissioner to conclude that the “genuinely agreed” approval requirement in s 186(2)(a) was satisfied absent the application of s 188(2), which was clearly not considered by the Commissioner. In those circumstances, we consider it necessary to grant permission to appeal in respect of the “genuinely agreed” ground, uphold the appeal, and quash the Decision.” 1

[3] The Full Bench refused permission to appeal in relation to the remaining grounds of the Appellant’s Notice of Appeal. The Full Bench remitted the matter to me for redetermination. The Full Bench noted that the redetermination would require consideration to be given as to whether:

• Section 188(2) of the Act can overcome the Applicant’s non-compliance with s.180(5); and

• The Applicant’s incorrect statement has any consequences for the Commission’s satisfaction or otherwise of s. 188(1)(c). 2

[4] Subsequent to the remittal, I set directions for the filing of materials and listed the matter for hearing. I determined to allow the AWU to be heard in the matter of the remittal as I thought it was appropriate in the circumstances to do so having regard to the discretion afforded to me pursuant to s. 590 of the Act. I also allowed counsel for the Applicant permission to appear.

[5]

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 Rigforce Pty Ltd T/A Rigforce

Details

AGLC: Rigforce Pty Ltd T/A Rigforce [2020] FWC 591
Case: [2020] FWC 591
Decision Date: 9 APRIL 2020

CaseChat Overview and Summary

The parties involved in the case were Rigforce Pty Ltd, trading as Rigforce, and the Fair Work Commission. The dispute centred around the application for approval of the RFD Enterprise Agreement 2019, which had previously been remitted from the Full Bench following an upheld appeal due to non-compliance with section 180(5). The key legal issues before the court were whether a genuine agreement concern could be addressed under section 188(2) and the implications of the Commission's satisfaction under section 188(1)(c). Additionally, the court needed to determine if the proposed section 190 undertaking would resolve the genuine agreement concern.

The court examined the application for approval of the RFD Enterprise Agreement 2019, noting the earlier decision had been remitted due to failure to comply with section 180(5). The court considered whether section 188(2) could alleviate the genuine agreement concern and if the Commission's satisfaction under section 188(1)(c) had any bearing on the outcome. The court also assessed the proposed section 190 undertaking to ascertain if it met the genuine agreement concern. The court concluded that the proposed undertaking did not satisfactorily address the genuine agreement concern and dismissed the application.

The court determined that the application for approval of the RFD Enterprise Agreement 2019 was dismissed because the proposed undertaking did not meet the genuine agreement concern. The court found that section 188(2) could not overcome the concern, and there were implications for the Commission's satisfaction under section 188(1)(c). The court's decision hinged on the failure to resolve the genuine agreement concern through the proposed undertaking.

Orders