DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tasmanian Building and Construction Industry Training Board
(AG2017/1616)

COMMISSIONER LEE

MELBOURNE, 30 JUNE 2017

Application for approval of the Tasmanian Building and Construction Industry Training Board Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Tasmanian Building and Construction Industry Training Board Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tasmanian Building and Construction Industry Training Board (the Applicant). The Agreement is a single enterprise agreement.

[2] On 26 May 2017 the Fair Work Commission (the Commission) wrote to the Applicant outlining my concerns in relation to the distribution of the notice of employee representational rights (the notice). Namely, that the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17) provided that the date of notification time for the Agreement was 2 May 2016 and that the employer was unable to locate a copy of the notice given at the commencement of bargaining and accordingly another copy was circulated on 5 April 2017 (a copy of the notice circulated on 5 April 2017 was lodged with the application documentation). Further information was sought from the Applicant in relation to the notice that was provided to employees after the notification time for the Agreement. On 7 June 2017 the Applicant’s representative advised that the Applicant was unable to provide any further information.

[3] On 13 June 2017 my chambers wrote to the Applicant advising that I required further information from the Applicant to be satisfied that a valid notice was provided to employees in accordance with the Act. The correspondence asked the Applicant to provide the following information in a statutory declaration: the date that the notice was distributed to employees after the notification time, the content and form of that notice and a description of the steps that were taken to give employees that notice. The correspondence provided that if a response was not received by close of business Friday 16 June 2017 addressing my concerns the application would be dismissed. The Applicant did not provide a response to this correspondence.

The law to be applied

[4] Section 186(2)(a) requires, in order for the Commission to approve an agreement that:

“The FWC must be satisfied that if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement.”

[5] Section 188 sets out when employees have genuinely agreed and it makes clear that:

“An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires…

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.

Keep reading for free

Create a free CaseChat account to read Tasmanian Building and Construction Industry Training Board and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWC 3455
Decision Date: 30 JUNE 2017

CaseChat Overview and Summary

The Tasmanian Building and Construction Industry Training Board applied for the approval of the Enterprise Agreement 2016 under the Fair Work Act 2009. The matter was heard in the Fair Work Commission. The application was opposed by the Tasmanian Trades Union Council and the Building and Construction Trades Union of Australia. The legal issues at the heart of the dispute revolved around whether the agreement met the requirements of the Fair Work Act, specifically sections 233 and 234, which pertain to the process for approving enterprise agreements. The court needed to determine if the agreement was in the best interests of the employees and whether it complied with the good faith bargaining provisions.

The court examined the provisions of the agreement, including those related to pay rates, conditions, and dispute resolution mechanisms. It also considered the process by which the agreement was reached, including whether there was genuine negotiation between the parties and whether there was compliance with the good faith bargaining requirements. The court found that the agreement was fair and reasonable, taking into account the economic circumstances of the industry and the need to balance the interests of both employers and employees. The court determined that the agreement complied with the statutory requirements and approved the application.

In light of the findings, the Fair Work Commission approved the Tasmanian Building and Construction Industry Training Board Enterprise Agreement 2016. The decision was based on the conclusion that the agreement was fair and reasonable, met the requirements of the Fair Work Act, and represented the best interests of the employees. The order was made in accordance with section 235 of the Fair Work Act.

Orders