DECISION

Fair Work Act 2009
s.185—Enterprise agreement

York Civil Pty Ltd
(AG2017/2320)

YORK CIVIL PTY LTD QUEENSLAND & NEW SOUTH WALES ENTERPRISE AGREEMENT 2017 - 2021

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 29 AUGUST 2017

Application for approval of the York Civil Pty Ltd Queensland & New South Wales Enterprise Agreement 2017 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the York Civil Pty Ltd Queensland & New South Wales Enterprise Agreement 2017 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by York Civil Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] It is noted that the Construction, Forestry, Mining and Energy Union (“CFMEU”) indicated that it wished to be heard in regard to the application, and provided a written submission highlighting various matters it wished to be heard in regard to. However, it also relieved upon the Full Bench decision in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd [2016] FWCFB 8413 which indicates they are not bargaining representatives to the application.

[5] The Applicant submitted, in response, that they oppose the CFMEU being heard, and in particular, the decision referred to in the CFMEU’s correspondence (Ron Southon Pty Ltd [2016] FWCFB 8413) found that the CFMEU did not have sufficient interest to be heard.

[6] The issue about the right to be heard, other than as a bargaining representative, in dealing with applications made under section 185 of the Act was obviously dealt with at length in the Full Bench decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd [2014 ]FWCFB 7940 (“Collinsville”). The Full Bench noted in that decision that it is accepted that the Fair Work Act does not provide for a right of intervention in proceedings before the Commission by a non– party. However, s. 590 does provide that the Commission may inform itself in relation to any matter before it in such manner as it considers appropriate. The Full Bench then continued to deal with the grounds relied upon in that matter by the CFMEU as to why it should be heard.

[7] It indicated in conclusion, that any right, interest, or legitimate expectation that might give rise to a right to be heard must be identified and understood against the framework of enterprise bargaining and Agreement making established by…

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.

Continue reading York Civil Pty Ltd

Details

AGLC: York Civil Pty Ltd [2017] FWCA 4372
Case: [2017] FWCA 4372
Decision Date: 29 AUGUST 2017

CaseChat Overview and Summary

York Civil Pty Ltd sought approval of an enterprise agreement from the Fair Work Commission under the Fair Work Act 2009. The dispute involved the proposed terms and conditions of employment for employees covered by the agreement, specifically those in Queensland and New South Wales. The Fair Work Commission was tasked with determining whether the agreement was appropriate for the employees and if it complied with the requirements of the Fair Work Act.

The primary legal issues the Commission had to address were whether the agreement was made in good faith, whether it provided for the proper classification of employees, and if it met the standards set by the Fair Work Act, including the notion of "better off overall." Additionally, the Commission needed to ensure that the agreement was free from any unlawful provisions and that it was appropriate for the employees involved.

The Fair Work Commission concluded that the agreement was made in good faith and that it provided for the proper classification of employees. The Commission found that the agreement was fair and balanced, ensuring that employees were better off overall. The Commission was satisfied that the agreement met all the statutory requirements and did not contain any unlawful provisions. Consequently, the Commission approved the York Civil Pty Ltd Queensland & New South Wales Enterprise Agreement 2017 - 2021.

The final orders included the approval of the York Civil Pty Ltd Queensland & New South Wales Enterprise Agreement 2017 - 2021, effective from the date of the Commission's decision. The agreement was to apply to the employees specified in the application and was to remain in force until the end of the specified period, unless terminated earlier in accordance with its terms or the provisions of the Fair Work Act.

Orders