3 Point Engineering Pty Ltd

[2018] FWC 4229

[2018] FWC 4229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

3 Point Engineering Pty Ltd

(AG2018/1157)

A Plus Steel Fabrication Pty Ltd

(AG2018/1052)

Ruffin Hydraulics Pty Ltd

(AG2018/1101)

Commissioner McKinnon MELBOURNE, 18 JULY 2018

Application for approval of the 3 Point Engineering Pty Ltd Metals Labour Hire Agreement 2016-2019 Application, the A Plus Steel Fabrication Pty Ltd and AMWU Geelong Area Agreement 2017 - 2020 and the Ruffin Hydraulics Metal Engineering Workshop and Site Agreement 2018 -2021.

1. Application has been made for approval of enterprise agreements known as the 3 Point Engineering Pty Ltd Metals Labour Hire Agreement 2016-19; the A Plus Steel Fabrication Pty Ltd and AMWU Geelong Area Agreement 2017 – 2020 and the Ruffin Hydraulics Metal Engineering Workshop and Site Agreement 2018 – 2021 (the Agreements).

1. The applications are separately made by 3 Point Engineering (3 Point), A Plus Steel Fabrication Pty Ltd (A Plus) and Ruffin Hydraulics (Ruffin) respectively. 3 Point and Ruffin are small business employers.[1] A Plus has 15 employees and is not a small business, but only by a margin of one. Each of the employers was unrepresented in bargaining for the Agreements and did not seek to be represented in connection with the applications.

1. The Agreements were made with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). No other employee bargaining representatives appear to have been involved in bargaining.

1. The initial Form F17 filed in support of each application contains virtually identical answers to questions 2.3, 2.4, 2.5, 2.6 and 2.7. The only differences appear to be specified dates and times when events are said to have occurred. Two of the three Form F17s contain the same typographical errors in answer to question 2.5. The forms contain no information about the demographic composition of the group of employees, including whether they are from non-English speaking backgrounds, or under 21 or over 45 years of age, or otherwise.

1. The applications were heard on 2 July 2018.

1. Prior to the hearing, Ruffin Hydraulics provided a revised Form F17 with additional information about the enterprise agreement approval process and indicating that 8 employees are men over the age of 45 years who are employed on a full time basis. The material indicates that employees were given a summary of changes to existing entitlements prior to the agreement being made. The summary is not before the Commission. Ruffin Hydraulics did not appear at the hearing.

1. A Plus also provided a revised Form F17 with additional information about the enterprise agreement approval process. The material indicates that its enterprise agreement is standard in its terms and based on a template adopted by multiple metal trades businesses in the Geelong area. It is based on earlier versions of a similar agreement with changes to wage increases and a new provision for paid domestic violence leave. According to A Plus, the terms of its Agreement were very well known to employees because they had worked under earlier versions of the agreement, either with A Plus or another Geelong metal trades business. A Plus did not appear at the hearing.

1. 3 Point did not provide any additional information in support of its application and did not appear at the hearing.

1. The AMWU appeared at the hearing but with limited instructions. An opportunity was provided for additional submissions to be made after the hearing but no further materials were received by the Commission within the time provided.

1. As a Full Bench of this Commission recently confirmed, it is a serious matter and a criminal offence for a person to intentionally make a false statement in a statutory declaration.[2] Under section 11.2(1) of the Schedule to the Criminal Code Act 1995 (Cth), a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly”.[3]

1. The content of the Form F17 filed in support of the Agreements in each case creates reasonable grounds for concern about the accuracy of the information provided and whether the Agreements were genuinely agreed to by employees for the purposes of section 186(2).

1. There is insufficient material before me to find that the Form F17 statutory declarations in each matter contain false statements and I do not propose to refer them on for further action on that basis. However, I am not satisfied on the materials that the Agreements were genuinely agreed to by relevant employees for the purposes of section 186(2). It follows that the Agreements cannot be approved.

1. The application for approval of each of the Agreements is dismissed.

COMMISSIONER

<PR609086>

[1] Fair Work Act 2009 (Cth), s.23

[2] Statutory Declarations Act 1959 (Cth), s.11

[3] Derbarl Yerrigan Health Service Inc. [2018] FWCFB 2721 at [34]; citing Pennyco Pty Ltd t/a Zarraffas West Ipswich [2017] FWCFB 4852 at [34].

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