The Australian Workers' Union - [2016] FWCA 9249

[2016] FWCA 9249 [Note: An appeal pursuant to s.604 (C2017/128) was lodged against this decision - refer to Full Bench decision dated 5 May 2017 [[2017] FWCFB 2296] for result of appeal.] [Undertakings 1 and 6 have been removed as per the Full Bench decision.]

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

The Australian Workers' Union

(AG2016/5442)

TCQ Labour Pty Limited / AWU Civil Construction Metro Greenfield Agreement 2016

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 23 DECEMBER 2016

Application for approval of the TCQ Labour Pty Limited / AWU Civil Construction Metro Greenfield Agreement 2016.

Introduction

This decision follows on from a decision I issued on 15 November 2016 [2016] FWC 8190 (the 15 November 2016 Decision) in respect of an application by The Australian Workers’ Union (AWU) for approval of an enterprise agreement known as the TCQ Labour Pty Limited / AWU Civil Construction Metro Greenfield Agreement 2016 (the Agreement). The Agreement is a single enterprise greenfields agreement. It has been made between TCQ Labour Pty Limited (Telum) and the AWU.

On the same day I issued two other decisions relating to Telum related companies:

· [2016] FWC 8161 – an application for approval of the Telum Contract Labour Pty Ltd / AWU WestConnex Project Civil Construction Greenfields Agreement 2016 (the WestConnex Agreement). AG2016/5440

· [2016] FWC 8186 – an application for approval of the TCQ Labour Pty Limited Regional Greenfield Agreement 2016 (the Regional Agreement). AG2016/5441

These three agreements have been dealt with together through joint submissions and a hearing, but separate decisions have been issued. I have continued this practice.

The 15 November 2016 Decision

I will not repeat the matters contained in the 15 November 2016 Decision but I rely on them.

That decision arose from the opposition of the Construction, Forestry, Mining and Energy Union (CFMEU) to the certificate of the Agreement.

In short, the 15 November Decision:

· set out in full the legislative provisions relating to the approval of agreements.

· decided that the agreement was made under s.187(3).

· stated that:

“[23] The questions to be determined are:

(a)       Does the Agreement relate to a “genuine new enterprise” as provided for in s.172(b) which has not yet employed anyone to be covered by the Agreement?
(b)       Is the AWU entitled to represent the industrial interests of one or more employees who will be covered by the Agreement as provided for in s.177(b)?
(c)       Does the Agreement satisfy the requirements of ss.186 and 187? Including:

(i)does it pass the better off overall test? (s.186(2)(d));
(ii)does the AWU represent the industrial interest of a majority of employees to be covered by the Agreement? (s.187(5)(a));
(iii)is it in the public interest to approve the Agreement? ((s.187(5)(b)).”

· relied on the decisions in CFMEU v Collinsville Coal Operations Pty Ltd (2014) FWCFB 7940 (Collinsville) and CFMEU v MGI Piling NSW (2016) FWCFB 2654 (MGI Piling) to conclude that whilst 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

AGLC: The Australian Workers' Union [2016] FWCA 9249
Case: [2016] FWCA 9249
Decision Date: 23 DECEMBER 2016

CaseChat Overview and Summary

In the case of the Australian Workers' Union, the applicant sought approval of the TCQ Labour Pty Limited / AWU Civil Construction Metro Greenfield Agreement 2016. The application was heard by the Fair Work Commission, which is tasked with overseeing and regulating industrial relations in Australia. The application was brought before the Commission due to the complexities of the agreement and the necessity for its formal approval to ensure compliance with the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement met all the requirements set out under the Fair Work Act. Specifically, the Commission had to consider if the agreement provided for fair and equitable terms and conditions, whether it complied with the principles of enterprise bargaining, and if it adhered to the requirements for registration under the Act. Additionally, the Commission needed to assess if the agreement was made in good faith and if it met the statutory conditions for approval.

The Commission, in its detailed assessment, found that the agreement met the necessary requirements under the Act. It was determined that the agreement was made in good faith, provided fair and equitable terms for the employees, and complied with the principles of enterprise bargaining. The agreement was also found to be comprehensive, covering all essential aspects of employment, including wages, hours of work, leave entitlements, and dispute resolution mechanisms. Therefore, the Commission approved the application for the registration of the agreement.

Consequently, the Fair Work Commission granted approval for the TCQ Labour Pty Limited / AWU Civil Construction Metro Greenfield Agreement 2016, ensuring its enforceability and compliance with the Fair Work Act. This decision was made in light of the thorough examination and the determination that the agreement met all statutory requirements.

Orders