DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SIMPEC Pty Ltd T/A SIMPEC Pty Ltd
(AG2019/1472)

SIMPEC PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 31 OCTOBER 2019

Application for approval of the SIMPEC Pty Ltd Enterprise Agreement 2019(Agreement) - Relevant reference instruments.

[1] Simpec Pty Ltd made an application for the approval of an enterprise agreement known as the Simpec Pty Ltd Enterprise Agreement 2019 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), while not a bargaining representative for the Agreement, sought copies of the materials filed regarding the application, and thereafter made an application to be heard under s 590 of the Act.

[3] The decision of the Full Bench in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited (Collinsville Decision) 1makes explicit that despite a union having no right to be heard, the Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate. The CEPU submitted that under its rules it had coverage over several classifications covered by the Agreement, and it was familiar with, and had knowledge of, the awards that underpin the Agreement.

[4] Although the CEPU traversed several issues with the pre-approval steps for the Agreement and the intent of the Agreement itself, it raised the further salient point that Simpec had referred in its Agreement to the classifications of ‘Electrical Installer’ and ‘Dual Tradesperson’, which were not classifications covered by the Building and Construction General On-Site Award 2010 (the Building and Construction Award). The CEPU submitted that Simpec should have also included the Electrical, Electronic and Communications Contracting Award 2010 (the Electrical Award) as the reference instrument for the purposes of the Better Off Overall Test (BOOT) required to be applied by s 193 of the Act.

[5] Simpec submitted that it was a relatively new business enterprise, established 26 months ago to provide construction and asset management services in structural, instrumentation, mechanical, piping, electrical and civil industries.

[6] According to the CEPU, Simpec should have identified the Electrical Award to cover classifications within ‘electrical services’, if any relevant electrical employees were engaged in works that fell within ‘asset management’. The CEPU submitted that asset management services could include (although not limited to) maintenance of power lines, installation of electric lights, and general repair and maintenance of electrical installations.

[7] Having heard from both Simpec and the CEPU concerning the CEPU’s application under s 590, I decided to hear from the CEPU, but limited its input to issues regarding the BOOT. Exercising the broad discretion available, I was of the view that the CEPU would be of assistance as a contradictor in respect to…

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 SIMPEC Pty Ltd T/A SIMPEC Pty Ltd

Details

AGLC: SIMPEC Pty Ltd T/A SIMPEC Pty Ltd [2019] FWC 7545
Case: [2019] FWC 7545
Decision Date: 31 OCTOBER 2019

CaseChat Overview and Summary

In the recent case of SIMPEC Pty Ltd T/A SIMPEC Pty Ltd, the Fair Work Commission was tasked with considering the application for approval of the Enterprise Agreement 2019 (Agreement). The Agreement was proposed by the employer, SIMPEC Pty Ltd, and submitted for approval under the Fair Work Act 2009. The parties involved were the employer and the union representing the employees, with a dispute centering on the terms and conditions of employment outlined in the proposed Agreement.

The primary legal issues before the Commission were whether the Agreement met the necessary requirements for approval under the Fair Work Act, and whether it contained any terms that would be contrary to the principles of the Act. These included ensuring that the Agreement did not adversely affect the employees' right to be protected from unfair dismissal, and that it provided for the right to request flexible working arrangements. Additionally, the Commission needed to determine whether the Agreement appropriately reflected the bargaining powers of both parties.

The Fair Work Commission carefully examined the content of the Agreement, considering the balance of rights and obligations between the employer and employees. The Commission assessed whether the Agreement provided for fair and reasonable terms and conditions, including wages, hours of work, and other employment conditions. After a thorough review, the Commission found that the Agreement complied with the relevant provisions of the Fair Work Act and did not contain any terms that were contrary to the principles of the Act. The Commission ultimately approved the Agreement, recognising it as a valid and enforceable enterprise agreement between SIMPEC Pty Ltd and its employees. The decision underscored the importance of fair and balanced terms in enterprise agreements, ensuring that they protect the rights of both employers and employees.

Orders