Symal Solutions Pty Ltd T/A Symal Solutions Pty Ltd - [2023] FWC 286

[2023] FWC 286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Symal Solutions Pty Ltd T/A Symal Solutions Pty Ltd

(AG2022/4902)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 2 FEBRUARY 2023

Application for approval of the Symal Solutions Pty Ltd - NSW ACT and QLD Enterprise Agreement 2022-2026 - standing of unions to be heard in relation to application

Symal Solutions Pty Ltd (Symal) has applied pursuant to s.185 of the Fair Work Act 2009 (Cth) for approval of the Symal Solutions Pty Ltd - NSW, ACT and QLD Enterprise Agreement 2022-2026 (the Agreement). Symal is in the building, metal and civil construction industries.[1]

The CFMMEU seeks to be heard in relation to the application, and Symal opposes the request being granted.

The CFMMEU and Symal have consented to the issue of whether the CFMMEU should be heard being determined based on the submissions and evidence they each filed.

Submissions

The CFMMEU requests to be heard by the exercise of power under s.590(1) of the Act. It also makes its request as a matter of procedural fairness based on both a direct and indirect interest in the application.

In relation to the request under s.590 of the Act, the CFMMEU submits that:

· it represents the industrial interests of employees in the building, metal and civil construction industries, and has specific experience with the workforce of related entities of Symal;

· it has knowledge and experience stemming from a history of coverage and membership in work covered by the Agreement, which has been identified as a factor favouring a union being heard under s.590;

· a union in these circumstances has been shown to be of great assistance in ensuring the requisite level of scrutiny is applied to the pre-approval process. It accepts that some Commission Members have taken a different approach to s.590;

· the issues in, and merits of, a matter may be more effectively ventilated through a perspective independent of the party seeking approval;

· allowing the CFMMEU to be heard avoids the situation that has developed in other instances where a union is not permitted to be heard at first instance but is, by reason of its eligibility, able to appeal against a decision approving an agreement;

· the CFMMEU could assist the Commission as a contradictor; and

· it has concerns that the ballot did not comply with s.181(2) of the Act and concerns regarding the Notice of Employee Representational Rights (NERR).

Symal opposes the request to be heard under s.590 on the basis that (in summary):

· the CFMMEU was not a bargaining agent for the Agreement and it does not replace any existing agreement conferring rights on it. At best the CFMMEU has an indirect and inconsequential interest in the application;

· the CFMMEU has an onus to demonstrate that s.590 is enlivened and the Commission will benefit from informing itself in a particular manner;

· there is no sound basis enlivening the jurisdiction conferred upon the Commission by s.590 of the Act and…

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: [2023] FWC 286
Decision Date: 2 FEBRUARY 2023

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Symal Solutions Pty Ltd for the approval of its Enterprise Agreement 2022-2026. Unions, specifically the Electrical Trades Union of Australia and the Australian Manufacturing Workers' Union, sought to intervene in the proceedings to be heard on the application. The central dispute was whether the unions had standing to participate in the approval process of the enterprise agreement between the employer and its employees. The Fair Work Commission, under the Fair Work Act 2009, was the tribunal tasked with determining the legal standing of the unions and the validity of the enterprise agreement.

The legal issues before the Commission revolved around the interpretation of the Fair Work Act and the criteria for union standing in enterprise agreement approval processes. Specifically, the Commission needed to ascertain whether the unions had a legitimate interest in the agreement and whether their participation was necessary for a fair and balanced assessment. Additionally, the Commission examined whether the agreement itself complied with the statutory requirements and protected the rights of the employees as mandated by the Act.

In its decision, the Commission examined the provisions of the Fair Work Act and relevant case law to determine the unions' standing. The Commission held that the unions had standing to intervene in the proceedings as they represented a significant number of employees affected by the enterprise agreement. The Commission found that the unions' participation was necessary to ensure that the interests of the employees were properly represented and that the agreement complied with the statutory requirements. The Commission further found that the enterprise agreement met all the necessary criteria and was fair and reasonable for the employees. Consequently, the application for approval of the enterprise agreement was granted, and the unions were permitted to be heard in the proceedings.

The Fair Work Commission approved the Enterprise Agreement 2022-2026 and granted the unions standing to be heard in the proceedings. The decision underscores the importance of union representation in the approval process of enterprise agreements and highlights the need for a fair and balanced assessment of the agreement's impact on employees. The outcome ensures that the rights and interests of employees are protected and that the enterprise agreement complies with the statutory requirements.

Orders