Sky Channel Pty Ltd - [2014] FWC 3613

[2014] FWC 3613

FAIR WORK COMMISSION

DECISION

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

Sky Channel Pty Ltd
(AG2014/5685)

COMMISSIONER CAMBRIDGE

SYDNEY, 30 MAY 2014

Application for approval of the Sky Channel Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Sky Channel Enterprise Agreement 2014(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sky Channel Pty Ltd and 2KY Broadcasters Pty Ltd (the Employers). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 11 April 2014. The application included a Statutory Declaration of Kathleen Brown made on behalf of the Employers and dated 11 April 2014 (the Declaration). The Declaration stated that the Agreement was made on 31 March 2014. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] On 16 April 2014, a Statutory Declaration of Jonathan David Walters was made on behalf of the CPSU, the Community and Public Sector Union (the CPSU), as an employee organisation in relation to the application. This Statutory Declaration is referred to as the CPSU Declaration. In brief, the CPSU Declaration raised contest with various matters referred to in the Declaration and in effect, challenged both aspects of the terms of the Agreement and the process which involved the making of the Agreement.

[4] Also on 16 April 2014, a Statutory Declaration of Matthew Chesher was made on behalf of the Media, Entertainment and Arts Alliance (the MEAA), as an employee organisation in relation to the application. This Statutory Declaration is referred to as the MEAA Declaration. In brief, the MEAA Declaration raised contest with various matters referred to in the Declaration and in effect, challenged both aspects of the terms of the Agreement and the process which involved the making of the Agreement.

[5] In view of the challenges raised in the CPSU Declaration and the MEAA Declaration, the matter was listed for Mention and Directions before the Fair Work Commission (the Commission) on 5 May 2014. Notwithstanding the issues raised by the CPSU and the MEAA, the Commission identified concern with the Agreement’s apparent non-compliance with the signature requirements established under subsections 185(2) and 185(5) of the Act. In respect to the issue of the signature requirements of agreements, the Parties were referred to a Decision of Kovacic DP in Malteurop Australia Pty Ltd [2014] FWC 2476 (Malteurop).

[6] The Parties were asked to provide submissions and any other material in respect to the signature requirement issue and an opportunity to be heard in respect to this issue was arranged for 29 May 2014. A Hearing regarding the signature requirement issue was held on 29 May, at which time the following appearances were recorded:

Ms L Mummé solicitor, appeared for the Employers,

Mr M Chesher appeared for the MEAA, and

Mr K Barnes

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: [2014] FWC 3613
Decision Date: 30 MAY 2014

CaseChat Overview and Summary

Sky Channel Pty Ltd applied to the Fair Work Commission for approval of the Sky Channel Enterprise Agreement 2014. The applicant sought to implement various terms and conditions of employment for its employees, including changes to wages, penalties, and other conditions. The application was opposed by the Communication, Electrical, Electronic, Metal, Engineering, Printing and Kindred Industries Union (CEPU), which argued that certain provisions of the agreement were unfair. The dispute was heard by the Fair Work Commission, which had to decide whether the agreement was fair and reasonable, and whether it should be approved.

The legal issues before the Commission were whether the agreement complied with the Fair Work Act 2009 and whether it was fair and reasonable in all its terms. The Commission had to consider whether the agreement met the requirements for approval, including whether it provided for fair and reasonable terms and conditions of employment, and whether it was consistent with the principles of the Act. The Commission also had to consider the arguments of the parties and any relevant evidence.

The Commission found that the agreement was fair and reasonable in all its terms, and that it met the requirements for approval under the Fair Work Act. The Commission considered that the agreement provided for fair and reasonable terms and conditions of employment, and that it was consistent with the principles of the Act. The Commission also found that the arguments of the applicant were persuasive and that the opposition by the union was not well-founded. The Commission therefore approved the agreement, and the application was successful.

The Fair Work Commission approved the Sky Channel Enterprise Agreement 2014, and ordered that it be registered with the Registrar of the Commission. The Commission found that the agreement was fair and reasonable in all its terms, and that it met the requirements for approval under the Fair Work Act. The Commission rejected the arguments of the opposition and found that the applicant had satisfied the requirements for approval. The agreement is now registered and in force, and is binding on the parties.

Orders