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, 28 NOVEMBER 2019

Application for approval of the SIMPEC Pty Ltd Enterprise Agreement 2019.

[1] On 31 October 2019, I issued a decision 1 regarding an application made by SIMPEC Pty Ltd (Simpec) 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), and 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, objected to its approval. I decided to hear from the CEPU but limited its standing to input regarding the Better Off Overall Test (BOOT). In short, the CEPU objected to Simpec’s reliance on the Building and Construction General On-Site Award 2010 2 (the Building and Construction Award) as the only reference instrument. The CEPU contended that Simpec should have included as a reference instrument, the Electrical, Electronic and Communications Contracting Award 20103(the Electrical Award).

[3] I concluded that each of the Building and Construction Award, the Electrical Award and the Hydrocarbons Industry (Upstream) Award 2010 4 (the Hydrocarbons Award) were the relevant modern awards for the purpose of assessing whether the Agreement passed the BOOT. With respect to passing the BOOT, I was satisfied that each employee and each prospective employee covered by the Building and Construction Award and the Electrical Award would be better off overall if the Agreement with undertakings provided by Simpec on 27 September 2019 applied, rather than the two aforementioned awards. However, as far as passing the BOOT with respect to the Hydrocarbons Award, I was unpersuaded that the Agreement passed.

[4] Having concluded that the Electrical Award and Hydrocarbons Award were also reference instruments, I observed Simpec had not been provided with the opportunity to address its compliance with s 180(5) in light of the conclusion reached. Directions were issued for Simpec to address the BOOT issue, its compliance with s 180(5) and whether there were no other reasonable grounds for believing that the Agreement had not been genuinely agreed to. The CEPU were invited to provide submissions regarding the BOOT issue concerning the Hydrocarbons Award, but declined to do so.

[5] On 7 November 2019, Simpec provided submissions addressing the issues identified in my initial decision, in addition to giving a revised undertaking that responded to the remaining BOOT issues concerning the Hydrocarbons Award.

Concerns about the BOOT and compliance with s 180(5)

[6] The Full Bench in AWU v Rigforce Pty Ltd 5 arrived at four propositions applicable to s 180(5) of the Act. It did so, having considered the decisions of the Federal…

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] FWCA 5646
Case: [2019] FWCA 5646
Decision Date: 28 NOVEMBER 2019

CaseChat Overview and Summary

The case involved SIMPEC Pty Ltd, trading as SIMPEC Pty Ltd, and the Fair Work Commission. The dispute centred around the application for approval of the SIMPEC Pty Ltd Enterprise Agreement 2019. The Fair Work Commission was tasked with determining whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009.

The key legal issues before the Commission included whether the agreement provided for the proper operation of the enterprise, whether it complied with the relevant legislative provisions, and whether it was genuinely negotiated between the parties. The Commission also needed to consider whether the agreement contained provisions that were contrary to public policy or were otherwise invalid.

The Fair Work Commission found that the agreement was genuinely negotiated and met the statutory requirements. The Commission approved the agreement, noting that it provided for the proper operation of the enterprise and complied with the relevant legislative provisions. The Commission also determined that none of the provisions in the agreement were contrary to public policy or otherwise invalid.

The Fair Work Commission approved the SIMPEC Pty Ltd Enterprise Agreement 2019, confirming its compliance with the relevant legislative provisions and its genuine negotiation between the parties. The Commission's decision provided clarity and certainty for the parties involved and ensured that the agreement would operate effectively within the legal framework.

Orders