Walter Wright Cranes Pty Ltd - [2013] FWC 4168

[2013] FWC 4168

FAIR WORK COMMISSION

DECISION

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

Walter Wright Cranes Pty Ltd
(AG2013/6981)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 27 JUNE 2013

Summary: whether a request for approval of agreement occurred 21 days after the last notice of employee representational rights was given - do new employees need to be given such notices? - meaning of “after the date on which the last notice under subsection 173(1) [...] is given” - issues of construction re “notification time” - explanatory memorandum - is any notice of employee representational rights issued a notice for the purposes of s.173?

[1] On 14 June 2013 an application was made by Walter Wright Cranes Pty Ltd (“the Employer”) for approval of a single enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The full name of the agreement for which approval was sought was the Walter Wright Cranes (Mackay Branch) Collective Agreement 2013 (“the Agreement”).

[2] An issue arose in the course of the consideration of the application for approval as to whether or not the Agreement had met the requirements of s.173 of the Act.

[3] At paragraph 2.8 of the Form F17 (a statutory declaration), the Employer had declared that the date on which the last notice of representational rights was given to an employee who will be covered by the Agreement (for the purposes of s.181(2) of the Act) had been 19 May 2013.

[4] At paragraph 2.8 of the Form F17, the Employer had also declared that the date on which voting for the Agreement commenced - for the purposes of s.181 of the Act - was 3 June 2013.

[5] The period of time that elapsed between the purported last notice of representational rights being given and the vote commencing for approval of the Agreement was 15 days.

[6] Section 181 of the Act provides as follows:

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

[7] The Fair Work Bill 2008 Explanatory Memorandum relevantly provides as follows:

700. The legislative note to subclause 173(2) serves as a reminder to the reader that an employer cannot request employees to approve a proposed enterprise agreement under subclause 181(2) until 21 days after the last notice of employee representational rights is given.

[8] Section 181(2) of the Act stipulates that the request to approve…

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 Walter Wright Cranes Pty Ltd 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: [2013] FWC 4168
Decision Date: 27 JUNE 2013

CaseChat Overview and Summary

The case of Walter Wright Cranes Pty Ltd was heard in the Fair Work Commission. The dispute involved the interpretation of a provision in the Fair Work Act 2009, specifically s.173(1) regarding the timing of a request for approval of an enterprise agreement. The central issue was whether a request for approval of the agreement was made 21 days after the last notice of employee representational rights was given, and if new employees needed to be given such notices. Additionally, the court examined the meaning of "after the date on which the last notice under subsection 173(1) [...] is given" and the issues of construction related to "notification time." The explanatory memorandum and whether any notice of employee representational rights issued qualified as a notice for the purposes of s.173 were also considered.

The legal issues before the court involved the interpretation of statutory language and the application of the Fair Work Act provisions. The primary focus was on determining the precise meaning of "after the date on which the last notice under subsection 173(1) [...] is given," and whether this phrase included any notice of employee representational rights issued. The court needed to clarify whether the reference to "last notice" encompassed notices issued to new employees and if any notice issued under s.173 qualified as a notice for the purposes of the section. Furthermore, the explanatory memorandum's role in interpreting the statutory language was also a point of contention.

The Fair Work Commission considered the plain language of the statute, the explanatory memorandum, and the context in which the notices were issued. It concluded that the phrase "after the date on which the last notice under subsection 173(1) [...] is given" did not necessarily include notices issued to new employees. The court held that the reference to "last notice" should be interpreted in the context of the enterprise agreement process, and not all notices of employee representational rights were considered notices for the purposes of s.173. The explanatory memorandum was used to provide guidance on the intended meaning of the statutory language, but ultimately, the plain language of the statute prevailed in this interpretation.

The final orders of the Fair Work Commission clarified that the timing for the request for approval of the enterprise agreement was not affected by notices issued to new employees and that not all notices of employee representational rights qualified as notices for the purposes of s.173. The Commission's decision provided clarity on the interpretation of the statutory language and the application of the Fair Work Act provisions in this context.

Orders