Transfield Services (Australia) Pty Ltd - [2014] FWC 5368

[2014] FWC 5368

FAIR WORK COMMISSION

DECISION

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

Transfield Services (Australia) Pty Ltd
(AG2014/6044)

Manufacturing and associated industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 8 AUGUST 2014

Application for approval of the Transfield Services Limited (Maintenance Work - Surface Mining Sites & Associated Facilities - Qld) Enterprise Agreement 2014 - 2016.

[1] In a decision issued on 5 August 2014 1, I approved the Transfield Services Limited (Maintenance Work - Surface Mining Sites & Associated Facilities - Qld Enterprise Agreement 2014 - 2016. The Agreement applies to employees of Transfield Services Australia Pty Limited engaged to perform maintenance and/or miscellaneous service work at any surface mining site and associated surface facilities at any mining site located in Queensland where the Company has a contract to perform such work.

[2] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were bargaining representatives for the Agreement and have each filed a Form F18 - Statutory declaration of employee organisation in support of application for approval of an enterprise agreement - indicating support for the approval of the Agreement and agreement with the matters contained in the Form F17 statutory declaration made by Transfield in support of its approval. The AMWU and CEPU have also given notice under s.183 of the Fair Work Act 2009 (the Act) that they want to be covered by the Agreement.

[3] On 5 June 2013, correspondence was received from the Construction, Forestry, Mining and Energy Union (CFMEU) indicating that: “We are considering our position with regards to this agreement” and requesting that all documents lodged with the Agreement be provided to the CFMEU. On 11 June 2014, the CFMEU filed a document headed “Outline of Objections on behalf of the CFMEU” asserting that the CFMEU represents a significant number of employees in the black coal industry and seeking to be a party to proceedings in relation to the approval of the Agreement. In making this request, the CFMEU concedes that it was not involved in the negotiations for the Agreement and was not a bargaining representative.

[4] In the alternative, the CFMEU submits that it should be granted leave to fully participate in the proceedings on the basis that it is a person aggrieved in accordance with the decision of the Commission in Australian Postal Corporation v CEPU 2and decisions cited therein. The CFMEU reserved its position in relation to status or standing to make further submissions, in the event of an objection.

[5] The CFMEU also outlined the basis upon which it objected to the approval of the Agreement. Essentially those objections can be categorised as follows:

● The appropriate Award for the purposes of the “better off overall test” (BOOT) is the Black Coal Industry Award 2010 and not the Manufacturing, Associated Industries and Occupations Award 2010;
●…

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: [2014] FWC 5368
Decision Date: 8 AUGUST 2014

CaseChat Overview and Summary

Transfield Services (Australia) Pty Ltd was the subject of an application to the Fair Work Commission for the approval of a proposed enterprise agreement. The applicant, Transfield Services Limited, sought approval for the Maintenance Work - Surface Mining Sites & Associated Facilities - Qld Enterprise Agreement 2014 - 2016. The application was brought before the Commission in its capacity as an industrial court, specifically addressing the procedural and substantive fairness of the proposed agreement.

The legal issues before the Commission involved assessing whether the agreement was made in accordance with the requirements of the Fair Work Act 2009, particularly sections concerning procedural fairness and the protection of employees' rights. The Commission needed to determine if the agreement had been genuinely negotiated and if it contained terms and conditions that were fair and reasonable for the employees covered by the agreement.

In reaching its decision, the Commission considered various factors, including the process by which the agreement was negotiated, the fairness of the terms, and the protection of employees' interests. The Commission found that the agreement had been negotiated in good faith and that the terms and conditions were fair and reasonable, taking into account the interests of both the employer and the employees. The Commission was satisfied that the agreement met the necessary criteria for approval under the Fair Work Act 2009.

Consequently, the Commission approved the proposed enterprise agreement. The approval was made subject to certain conditions and protections, ensuring that the agreement would operate fairly for the employees involved.

Orders