Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union - [2017] FWCFB 2459

[2017] FWCFB 2459 [Note: refer to the Federal Court order dated 9 November 2017 NSD840/2017 for result of appeal].

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Thiess Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2017/1073)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 23 MAY 2017

Appeal against decision [2017] FWC 718 of Commissioner Roe at Melbourne on 6 February 2017 in matter number AG2016/7396; whether the Commissioner erred in finding that employees who voted to approve an enterprise agreement were not covered by it; whether the Commissioner erred in concluding s.186(2)(a) had not been satisfied; construction of coverage provision of enterprise agreement; error established; permission to appeal granted; appeal upheld; decision quashed; application remitted for determination by another Member.

Background

[1] On 29 November 2016 an enterprise agreement titled the MTP Enterprise Agreement 2016 (Agreement) was purportedly made when three employees of Thiess Pty Ltd (Thiess) who are said to be covered by the Agreement approved the Agreement by voting for it. By application lodged on 1 December 2016 Thiess applied to the Fair Work Commission (Commission) under s.185 of the Fair Work Act 2009 (Act) for the approval of the Agreement.

[2] The Construction, Forestry, Mining and Energy Union (CFMEU) was not a bargaining representative for the Agreement but it was given an opportunity to make submissions and to be heard by Commissioner Roe, the Member of the Commission to whom the application for approval had been allocated, in relation to the question whether the Agreement should be approved.

[3] The Commissioner determined by a decision published on 6 February 2017 (Decision) that the application be dismissed. 1 By its notice of appeal lodged on 27 February 2017 Thiess seeks permission to appeal and appeals the Decision.

[4] The notice of appeal sets out seven grounds of appeal, which variously deal with:

● the Commissioner’s conclusion that the employees who voted to approve the Agreement were not at that time covered by the Agreement with the consequence that the Commissioner was not satisfied that the Agreement (not being a greenfields agreement) was genuinely agreed to by the employees covered by the Agreement, as required by s.186(2)(a) of the Act 2 (coverage issue);

● the Commissioner’s conclusion that he was not satisfied the group of employees covered by the agreement was fairly chosen; 3 and

● the Commissioner’s view that there were reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees. 4

[5] The Commissioner’s Decision is succinctly set out at [41] – [42] of the Decision as follows:

“[41]I am not satisfied that the employees who voted for the Agreement were covered by it. Section 186 (2)(a) is therefore not met and I cannot approve the Agreement. The Application for approval of the Agreement is therefore dismissed.

[42]If I am wrong about this then I am not satisfied that the scope of the Agreement was fairly chosen, having regard to the issue…

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 Thiess Pty Ltd v Construction, Forestry, Mining and Energy U... 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] FWCFB 2459
Decision Date: 23 MAY 2017

CaseChat Overview and Summary

Thiess Pty Ltd appealed against a decision of Commissioner Roe in the Fair Work Commission. The dispute involved whether employees who voted to approve an enterprise agreement were covered by it. The court had to decide on the interpretation of the coverage provision within the enterprise agreement and whether the Commissioner had erred in concluding that certain conditions under section 186(2)(a) had not been satisfied.

The legal issues revolved around the interpretation of the coverage provision in the enterprise agreement and whether the Commissioner had applied the correct legal principles in determining that the employees were not covered by the agreement. The court examined whether the employees, who had voted to approve the agreement, were indeed covered by it, and if the Commissioner's conclusion regarding section 186(2)(a) was correct.

The court found that the Commissioner had erred in his interpretation of the coverage provision and in his conclusion regarding section 186(2)(a). The court held that the employees who voted to approve the agreement were covered by it and that the Commissioner's findings were flawed. Consequently, the court granted Thiess Pty Ltd permission to appeal and upheld the appeal. The decision was quashed, and the matter was remitted to the Fair Work Commission for determination by another Member.

Orders