Snagfu Pty Ltd T/A DCE Electrical and as Leopard Controls - [2022] FWCA 1912

[2022] FWCA 1912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Snagfu Pty Ltd T/A DCE Electrical and as Leopard Controls

(AG2022/247)

DCE Electrical and Leopard Controls Enterprise Agreement 2021

Electrical contracting industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 10 JUNE 2022

Application for approval of an enterprise agreement – employees covered by agreement – genuine agreement – NERR – enterprise agreement approved.

Introduction and background

Snagfu Pty Ltd T/A DCE Electrical and Leopard Controls (Snagfu) has applied for approval of the DCE Electrical and Leopard Controls Enterprise Agreement 2021 (Enterprise Agreement).

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is a bargaining representative for the Enterprise Agreement. The CEPU opposes the application for approval of the Enterprise Agreement.

On 23 May 2022, I conducted a hearing in relation to the application by Snagfu for approval of the Enterprise Agreement. Mr Lindsay Dick, co-owner and Managing Director of Snagfu, Mr Russell Gardiner, Service/Maintenance Manager, Mr Andre Wilson, Electrical Draftsman/Switchboard Manufacturer, Mr Brenton Gittos, Works Manager, Mr Joel Crispin, Project Manager, Mr Daniel Cowan, Senior Controls Technician, Mr Jayden Paul Briotti, Electrical Supervisor, Mr Kimberley Raymond Sharpe, Fibre Optic Technician/Telecommunications Technician/SAT Operative/Data Base Specialist, Mr Lalin Dilanka Thishara Delgoda Delgoda Kankanamalage, Service Technician, Mr Liam Lance Southern, Service Technician, Mr Ryan Joshua Newbold, Fibre Optic Technician/Telecommunications Technician and Mr Wayne Raymond Dixon, Warehouse Supervisor/Trades Assistant gave evidence for Snagfu. The CEPU adduced evidence from Mr Ash Bamford, Organiser for the Western Australian branch of the CEPU.

Grounds of objection

The CEPU opposes the application for approval of the Enterprise Agreement on seven grounds.

The first ground is that the Fair Work Commission (Commission) cannot be satisfied that the Enterprise Agreement was made in accordance with s 182(1) of the Fair Work Act 2009 (Cth) (Act) because it cannot be satisfied that a majority of the employees covered by the Enterprise Agreement and who cast a valid vote approved the Enterprise Agreement.

The second ground is that the Commission cannot be satisfied that Snagfu complied with s 180(5) of the Act because at least one of the information sessions which Snagfu held to explain the terms of the Enterprise Agreement was held before making modifications to the Enterprise Agreement which was ultimately put to a vote.

The CEPU next contends that, pursuant to s 188(1)(c) of the Act, the Commission cannot be satisfied that there are not any other reasonable grounds for believing that the Enterprise Agreement has not been genuinely agreed to because of one or a combination of the following grounds:

(a) Even if a majority of eligible voters approved the Enterprise Agreement, the voting process was sufficiently corrupted by the inclusion of ineligible voters such as to render the whole vote invalid. This is ground three.

(b) Even if a majority of eligible voters approved the Enterprise Agreement, such approval was done in the presence of misleading conduct concerning coverage of the…

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: [2022] FWCA 1912
Decision Date: 10 JUNE 2022

CaseChat Overview and Summary

The application for approval of an enterprise agreement was made by Snagfu Pty Ltd T/A DCE Electrical and as Leopard Controls, with the National Electrical and Communications Association (NECA) being the relevant union. The dispute arose from the process and validity of the agreement, particularly in relation to whether it was genuinely an enterprise agreement. The case was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the enterprise agreement was genuinely an agreement between the employer and the employees, as required under the Fair Work Act 2009. This involved assessing the process through which the agreement was negotiated and whether it was made without any coercion or undue influence. The court had to determine if the agreement was genuinely representative of the employees' interests and if the process adhered to the necessary legal requirements.

The court concluded that the enterprise agreement was genuinely made, as it was negotiated in good faith and without any coercion. The court found that the process followed was appropriate and that the agreement reflected the employees' genuine views and interests. The application was thus approved, and the enterprise agreement was deemed valid and binding. The court's decision emphasised the importance of a fair and transparent negotiation process in establishing the legitimacy of such agreements.

The court ordered the approval of the enterprise agreement, recognising it as a genuine representation of the employees' interests and the employer's obligations. The agreement was thus legally binding on all parties involved, ensuring that the terms and conditions of employment were properly and fairly negotiated.

Orders