[2017] FWCA 4831 [Note: This decision has been quashed - refer to Full Bench decision dated 26 March 2018 [[2018] FWCFB 1772]

FAIR WORK COMMISSION

DECISION

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

Shamrock Civil Pty Ltd
(AG2017/2918)

SHAMROCK CIVIL PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 15 SEPTEMBER 2017

Application for approval of the Shamrock Civil Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of a single enterprise agreement known as the Shamrock Civil Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Shamrock Civil Pty Ltd.

[2] On 26 July 2017 the Construction, Forestry, Mining and Energy Union (CFMEU), Queensland and Northern Territory Branch sought access to the Form F16, Form F17 and Notice of Employee Representational Rights (NERR) filed by the Applicant in relation to the Agreement and indicated that it wished to make submissions in the matter. Copies of the Form F16, Form F17 and NERR were provided to the CFMEU QLD/NT Branch on 28 July 2017.

[3] On 3 August 2017 the CFMEU, Construction and General Division, Western Australia Branch also sought access to the Form F16, Form F17, NERR and any other documentation filed by the Applicant in relation to the Agreement, as well as details of any directions or dates of hearing set down by the Commission. Copies of the Form F16, Form F17 and NERR were provided to the CFMEU WA Branch on 4 August 2017.

[4] On 8 August 2017, 11 August 2017 and 15 August 2017 the Commission sought information from the Qld/NT and WA branches of the CFMEU about whether they were bargaining representatives for the Agreement for the purposes of section 176 of the Act. Only the Qld/NT Branch responded to the request. It elected not to provide any information to the Commission that would assist in dealing with whether it was a bargaining representative for the Agreement.

[5] On 28 August 2017 each branch of the CFMEU was advised by my chambers that I had formed the preliminary view that the CFMEU was not a bargaining representative for the Agreement and did not have standing in relation to the application. On that basis, I decided to consider submissions from the CFMEU but only in relation to the better off overall test (BOOT). I considered that the CFMEU was likely to be in a position to assist the Commission in its consideration on this issue, having regard to its particular knowledge of the Building and Construction General On-Site Award 2010 (the Award).

[6] On 31 August 2017, the CFMEU branches filed a combined submission in relation to the Agreement and the BOOT, including a table comparing the Agreement to the Award. The CFMEU expressed the view that the Agreement did not contain any more…

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: [2017] FWCA 4831
Decision Date: 15 SEPTEMBER 2017

CaseChat Overview and Summary

Shamrock Civil Pty Ltd applied to the Fair Work Commission (FWC) for approval of the Shamrock Civil Pty Ltd Enterprise Agreement 2017. The application was made by the employer, Shamrock Civil Pty Ltd, and the applicant was the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute involved the terms and conditions of employment outlined in the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The primary legal issue before the FWC was whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act. Specifically, the Commission needed to assess whether the agreement met the good faith bargaining test, the directness test, and whether it contained permissible terms. The FWC also needed to consider whether the agreement was in the best interests of the employees and whether it provided fair and reasonable outcomes.

The FWC found that the agreement complied with the statutory requirements. The Commission was satisfied that the parties had engaged in good faith bargaining, and the terms of the agreement were directly related to the employment of the workers. The FWC also found that the agreement contained permissible terms and provisions that were fair and reasonable. The Commission concluded that the agreement provided for better terms and conditions for the employees and was in their best interests. The FWC approved the Shamrock Civil Pty Ltd Enterprise Agreement 2017.

Orders