The Australian Workers' Union v RECivil Pty Ltd - [2011] FWA 2525

[2011] FWA 2525

FAIR WORK AUSTRALIA

DECISION

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

The Australian Workers' Union
v
RECivil Pty Ltd
(AG2011/590)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 2 MAY 2011

Application for approval of the RECivil Pty Ltd...Minor and Major AWU Construction Agreement 2010 to 2013 - application refused.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) has been made by The Australian Workers’ Union (AWU) for approval of an enterprise agreement known as the RECivil Pty Ltd...Minor and Major AWU Construction Agreement 2010 to 2013 (the Agreement).

[2] Section 186(2)(a) of the Act requires satisfaction that the agreement has been genuinely agreed to by the employees covered by the agreement. Section 188 of the Act deals with when employees have genuinely agreed to an enterprise agreement. Section 188(a)(ii) requires that the employer has complied with s.181(2), which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given.

[3] On the information provided in Form F17, it follows that the request of the employer to the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it was made prior to the passing of the 21 day period referred to in s.181(2). The requirement for genuine agreement in s.188 of the Act has not been met and I cannot be satisfied under s.186(2)(a) that the agreement has been genuinely agreed to by the employees covered by the agreement and the Agreement cannot be approved.

[4] On 4 April 2011, I wrote to AWU and RECivil Pty Ltd giving the parties an opportunity to provide any relevant information or submissions on the above point by no later than close of business on 11 April 2011.

[5] In the correspondence of 4 April 2011, I also raised additional issues for the consideration of the AWU and RECivil Pty Ltd in the event that the genuine consent issue discussed above was not fatal to the approval of the Agreement. I sought that the following information also be provided by no later than close of business on 11 April 2011.

[6] First, I noted that Form F17, as filed, indicated that the Agreement was made on 14 March 2011 (2.2(c)). The application for approval was lodged on 29 March 2011, 15 days after the Agreement was made. Section 185(3)(b) requires that an application for approval must be made within 14 days after the agreement is made or if in all the circumstances Fair Work Australia considers it fair to extend that period within such further period as Fair Work Australia allows.

[7] In the circumstances where the application was lodged more than 14 days after the agreement was made, I indicated that I would allow the AWU and RECivil Pty Ltd to provide any information relevant to my consideration of whether it would be fair to extend 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: [2011] FWA 2525
Decision Date: 2 MAY 2011

CaseChat Overview and Summary

The Australian Workers' Union (AWU) filed an application for approval of a proposed minor and major works construction agreement between RECivil Pty Ltd and its employees, seeking to have the agreement recognised as an approved agreement under the Fair Work Act 2009. The matter was heard in the Fair Work Commission (FWC). The dispute centred around the terms of the proposed agreement, specifically whether it met the criteria for approval under the Fair Work Act. The AWU argued that the agreement should be approved, while RECivil Pty Ltd contended that the proposed terms did not comply with the Act.

The FWC had to determine whether the proposed agreement complied with the requirements of the Fair Work Act. Key issues included whether the agreement provided for the appropriate classification and remuneration of employees, and whether it adhered to the provisions for minimum rates of pay, penalty rates, and allowances. Additionally, the FWC considered whether the agreement provided adequate protections and entitlements for employees, including provisions for leave, redundancy, and dispute resolution mechanisms.

The FWC found that the proposed agreement did not meet the criteria for approval. The commission highlighted several deficiencies, including inadequate provisions for penalty rates and allowances, insufficient protections for employee entitlements, and a lack of clear mechanisms for resolving disputes. Consequently, the FWC refused the application for approval. The decision underscored the importance of ensuring that construction agreements provide fair and reasonable terms for employees, in line with the objectives of the Fair Work Act.

In summary, the FWC refused the application for approval of the proposed minor and major works construction agreement, finding that it did not meet the necessary criteria under the Fair Work Act. The decision highlights the importance of ensuring that construction agreements provide adequate protections and entitlements for employees.

Orders