ENTERPRISE AGREEMENTS – greenfields agreement – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – greenfields agreement titled TCQ Labour P/L / AWU Civil Construction Metro Greenfield Agreement 2016 (Agreement) was made by TCQ Labour P/L (TCQ) and the Australian Workers’ Union (AWU) on 31 August 2016 – Construction, Forestry, Mining, and Energy Union (CFMEU) opposed the approval of the Agreement and, though not a bargaining representative for the Agreement, was permitted to make submissions in opposition and to appear at the hearing – CFMEU was confined to questions about whether the Agreement related to a genuine new enterprise, whether the Agreement passed the better off overall test and whether it was in the public interest to approve the Agreement – at first instance the Agreement was approved with undertakings – grounds for appeal included that the Commission erred in failing to give any or adequate reasons for its decision; in failing to take into account inconsistent evidence; made a serious error of fact in concluding that there was a genuine new enterprise; and erred in accepting undertakings – Full Bench not persuaded that the answers to questions given in the statutory declarations were contradictory or could not be reconciled – held that although the Commission did not expressly engage with the CFMEU’s argument or give reasons for its rejection, the omission was not fatal – found that the undertaking was not one capable of being accepted by the Commission under s.190 of the FW Act – Full Bench persuaded that permission to appeal should be granted because an error in the Decision has been established and the nature of the error identified raises for consideration the proper administration of the Commission’s power to accept undertakings during the agreement approval process – grounds of appeal concerning the undertaking upheld – given the nature of the error identified, Full Bench did not consider it needed to set aside the Decision to approve the Agreement – s.607 provides that the Commission may, in relation to an appeal, vary the Decision – as paragraphs 1 and 6 of the undertaking were not capable of being accepted because they did not respond to any concern that the Agreement did not meet any particular requirement in ss.186 or 187, removal of those paragraphs from the undertaking will not have a bearing on the validity of the decision to approve the Agreement – Full Bench exercised its power to vary the Decision by removing the impugned paragraphs from the undertaking. Appeal by Construction, Forestry, Mining and Energy Union against decision of Lawrence DP of 23 December 2016 [[2016] FWCA 9249] Re: Australian Workers’ Union and Anor
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