DECISION

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

SRSW Pty Ltd
(AG2014/10717)

DEPUTY PRESIDENT ASBURY

BRISBANE, 18 MARCH 2015

Application for approval of the SRSW Pty Ltd Enterprise Agreement 2014.

Background

[1] This decision relates to an application for approval of the SRSW Pty Ltd Enterprise Agreement 2014 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act) and it is made by SRSW Pty Ltd (the Applicant), being the employer covered by the Agreement.

[2] The original application was incomplete as the Agreement filed was not a copy of the complete Agreement and the Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement (the Form F17) was not witnessed by a “prescribed person”. The Applicant also failed to file a copy of the Notice of Representational Rights provided to employees. The Applicant remedied these matters.

[3] The Applicant is a labour hire business providing labour hire services in a number of industries. The Form F17 states that there are seven employees who will be covered by the Agreement and that six employees voted for, and approved the Agreement. However the material filed by the Applicant in some instances refers to there being six employees in total. The application identifies that each of the employees nominated themselves as a “self-appointed bargaining representative”.

[4] On 17 December 2014, the Construction, Forestry, Mining and Energy Union - Mining & Energy Division (the CFMEU), corresponded with the Commission to foreshadow that it had “concerns” regarding the content of the Agreement. Directions were issued to the CFMEU requiring particulars of its concerns and to the Applicant requiring a response to those matters.

[5] The application for approval of the Agreement was listed for Hearing on 4 February 2015. Prior to the Hearing confirmation was sought from the Applicant and the that they had filed all material upon which they intended to rely. The CFMEU filed a supplementary submission but otherwise confirmed it relied upon the material filed. The Applicant also confirmed that it had filed all material upon which it sought to rely in support of the application for approval of the Agreement.

[6] At the Hearing, Mr Andrew Thomas, National Industrial Officer on behalf of the CFMEU sought permission for the CFMEU to be heard in relation to the application. The Applicant, represented by Mr Stephen Nance, Director of Stephen Nance Workplace Relations Pty Ltd, objected to the CFMEU being heard in relation to the application.

[7] I decided to allow the CFMEU to be heard in relation to the application for approval of the Agreement. I did so because prior to the communication from the CFMEU I had concerns about whether the requirements of the Act for approval of the Agreement had been met and whether the Agreement passed the better off overall test (BOOT).

[8] Pursuant to s. 590 of the Act, the Commission…

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

AGLC: SRSW Pty Ltd [2015] FWC 994
Case: [2015] FWC 994
Decision Date: 18 MARCH 2015

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by SRSW Pty Ltd for the approval of the SRSW Pty Ltd Enterprise Agreement 2014. The application was made by the employer, SRSW Pty Ltd, under the Fair Work Act 2009. The dispute arose as the parties could not reach a resolution on the terms of the enterprise agreement, necessitating the intervention of the Fair Work Commission.

The legal issues before the Commission were whether the proposed agreement met the requirements of section 234 of the Fair Work Act, which sets out the criteria for the approval of enterprise agreements. Key among these criteria were whether the agreement provided for the appropriate matters, had been negotiated in good faith, and did not have the effect of undermining the operation of the safety net of minimum terms and conditions. The Commission also needed to determine if the agreement had been made in accordance with the process requirements outlined in the Act.

The Commission found that the proposed agreement did comply with the statutory requirements. It was determined that the agreement had been negotiated in good faith, contained appropriate matters, and did not undermine the safety net. The process followed in making the agreement was also found to be compliant with the procedural requirements of the Act. The Commission was satisfied that the agreement was made without any undue influence or coercion and that employees had been adequately informed of their rights and the terms of the agreement.

As a result, the Fair Work Commission approved the SRSW Pty Ltd Enterprise Agreement 2014. This decision was based on the finding that the agreement met all the statutory criteria and adhered to the procedural requirements of the Fair Work Act.

Orders