Acciona Construction Australia Pty Ltd T/A Acciona Construction Australia Pty Ltd
[2023] FWCA 2041
•4 JULY 2023
| [2023] FWCA 2041 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Acciona Construction Australia Pty Ltd T/A Acciona Construction Australia Pty Ltd
(AG2023/1642)
ACCIONA CONSTRUCTION AUSTRALIA PTY LTD WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2023
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 4 JULY 2023 |
Application for approval of the Acciona Construction Australia Pty Ltd Western Australia Enterprise Agreement 2023 – request by CFMMEU and CEPU to be granted leave to intervene in proceedings – Intervention by unions opposed by Applicant - Unions identify no right, interest or legitimate expectation to be involved in enterprise agreement approval proceedings – union not bargaining representative and not otherwise involved in proposed enterprise agreement being made by relevant employees – no issue that Unions as contradictors could assist with given Commission’s role in enterprise agreement approvals – Unions request for intervention denied – undertakings provided - enterprise agreement approved.
An application has been made for the approval of a proposed enterprise agreement to be known as the Acciona Construction Australia Pty Ltd Western Australia Enterprise Bargaining Agreement 2023 (Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Acciona Construction Pty Ltd (Applicant/Employer). The Agreement is a single enterprise agreement.
Background
The application was filed with the Commission on 30 May 2023, and allocated to my Chambers on 6 June 2023. Later that day, I listed the matter for Mention/Directions on 8 June 2023, noting that:
a) on 31 May 2023, the Construction Forestry Maritime Mining and Energy Union (CFMMEU) had made a request to access the digital file in this matter (a copy of the redacted digital file was provided to the CFMMEU that day by the Commission’s Agreements and Member Assist Team); and
b) on 2 June 2023, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU), had made a request to access the digital file in this matter “as it believes it has members who will be covered by this Agreement and wishes to be heard on this matter”[1] (a copy of the redacted digital file was provided to the CEPU on 5 June 2023 by the Commission’s Agreements and Member Assist Team).
At the Mention/Directions on 8 June 2023, both the CFMMEU and CEPU sought leave to fully participate in these proceedings, whilst the Applicant opposed the unions’ being granted such leave. In the circumstances, I issued the following directions:
“[1] By 4.00pm AEST on Friday, 16 June 2023, the CEPU and CFMMEU (Unions) must file with the Commission and serve upon the Applicant any written submissions they seek to make in relation to any intervention and its scope in the matter, and access to unredacted copies of materials filed by the Applicant.
[2] By 4.00pm AEST on Friday, 23 June 2023, the Applicant must file with the Commission and serve upon the Unions any written submissions in response to the Unions’ submissions and in support of its application.”
Both the Unions and the Applicant filed written submissions in accordance with the foregoing directions.
Submissions regarding Union intervention
The Unions’ submissions as to intervention (relevantly) read:
“1. The Unions have applied for leave to intervene in proceedings for the approval of the Acciona Construction Australia Pty Ltd Western Australia Enterprise Bargaining Agreement 2023 (Agreement).
2. Intervention, in this context, should be understood to be by way of the Commission’s discretion under section 590 of the Fair Work Act (2009) (Act) to hear from the Unions. The Unions seek that discretion be exercised in the form of allowing the Unions full participation in the proceedings.
3. The scope of the intervention sought is access to the unredacted and complete materials and leave to participate in proceedings and make submissions to the extent they are necessary and appropriate for the determination of the Application.
4. The Unions’ submissions are in five parts:
a.Access to documents, dealing with the Unions request to complete and unredacted materials,
b.Genuine agreement, dealing with an apprehension that the Unions have that the agreement was not genuinely agreed, and its consequence for the s 188(c) of the Act,
c.Sufficiency of explanation, dealing with the explanation of terms of the agreement provided to employees. This issue also goes to genuine agreement, however, has consequence for s 188(1)(i) and preapproval step s 180(5).
d.BOOT, deals with issues relevant to whether the agreement passes BOOT. Acknowledging that the Unions are not in a position to efficiently deal with the issue in their current position.
e.Disposition, deals with how the Unions propose the Commission responds to the applications for intervention and the issues raised”.[2]
The remainder of the Unions submissions are directed to the matters referred to under sub-paragraphs (4)(a) to (e) of their submissions.
In its submissions, the Applicant notes that the Unions have not filed any evidence in support of their contentions pursuant to which they seek leave to intervene, and opposes the Unions’ intervention (or request to be granted leave to participate or otherwise be heard in the proceedings) on the following three grounds:
(a) neither the CEPU nor CFMMEU were bargaining representatives for the Agreement;
(b) no substantive (or specific) objections to the enterprise agreement making process (in respect of the Agreement) have been identified by the Unions; and
(c) the discretion found under s.590 of the Act should not be exercised in favour of the CEPU and CFMMEU. [3]
On the issue of the Commission’s discretionary powers under s.590 of the Act, and the disposition of the Unions’ request to be involved in these proceedings, the Applicant made the following submissions:
“14. It is accepted that section 590(1) provides a broad procedural power such that the Commission “may, except as provided by this Act, inform itself in relation to any matter in such manner as it considers appropriate”.
15. It is further accepted that this extends to allowing a party a right to be heard. However, the discretion in section 590 rises and falls on the individual Commission Member, the proceedings on foot and whether, in the extant case, the Commission would be assisted by intervention.
16. It is submitted that the Commission does not need an intervenor or natural objector in these proceedings.
17. The Commission is in a position to consider the application for approval, raise any concerns, call for further evidence and submissions and, if necessary, undertakings to reach the requisite degree of satisfaction in order to dispose of the application.
18. It is submitted that such steps do not require the Unions’ to be granted permission to intervene in the proceedings.
19. Put simply, notwithstanding the Applicant denies there are any, the Commission is more than capable of identifying any issues with the application for approval and seeking evidence, submissions or undertakings from the Applicant to address those matters.
20. The fact that a union simply has an interest is not a prima facie, let alone a sufficient, platform upon which to grant a request to be heard under section 590 of the Act. These are no more than neutral considerations.
21. Moreover, there is a real risk that the granting of permission to intervene in the matter will result in the Agreement approval process turning into a protracted set of proceedings with no real or substantive basis for doing so. As noted, the Joint Submission raise no allegations of substance and demonstrates their intervention may be unhelpful to the Commission. In such circumstances there is a real risk of delaying the approval of the Agreement to hear matters which do not aid the Commission’s consideration or assist in the disposition of the application for approval.
22. In such circumstances, the Unions’ applications to be heard in this matter undermine the object of the FW Act to ensure that applications to the Commission for approval of enterprise agreement are dealt with without delay.
23. For the reasons submitted, section 590(1) should not be exercised to grant the CEPU or the CFMMEU the right to be heard in the application for approval.
Disposition of the Right to be Heard Issue
24. For the reasons submitted the CEPU and the CFMMEU:
(a)were not bargaining representatives for the Agreement;
(b)do not raise any objections which have substance or merit; and
(c)should not be granted a right to be heard pursuant to section 590(1) of the FW Act.
25. As Your Honour relevantly articulated in Downer:
The foregoing situation can result (and in many cases does result) in significant delay and/or the complicating of an otherwise straightforward enterprise agreement approval process by the Commission. The flow-on effects are that the Commission’s valuable time and resources are tied up in a contested enterprise agreement approval process, being time and resources that might otherwise be devoted to other matters before the Commission.
Further, employees who voted to approve the enterprise agreement are denied the expeditious granting of the benefits contained in the enterprise agreement whilst a ‘stranger’ delays the approval process by raising (in many cases) a smorgasbord of issues and arguments against approval. Such a stranger has no ‘skin in the game’ in advancing such opposition (i.e. the approval of the proposed enterprise agreement is either approved with a (in many cases lengthy) delay, or not approved). The only persons directly suffering or prejudiced from any such delay are the employees who democratically voted to approve the enterprise agreement and have its more beneficial terms and conditions (which must leave the relevant employees better off overall than the relevant modern award) apply to them.
26. Accordingly, the CEPU and CFMMEU’s requests to intervene should be dismissed”.[4]
Consideration regarding Unions’ request to be involved in proceedings
A right, interest or legitimate expectation to be involved in enterprise agreement approval proceedings can arise where the approval of an enterprise agreement will displace or alter the rights or obligations currently held by a union under the enterprise agreement that is being replaced.[5] As was stated by the Full Bench in Collinsville Coal Operations Pty Ltd:[6]
“[69] That an employee organisation has an ongoing relationship with its members who might become covered by an agreement and has a role under its rules in representing those members is not relevant in the context of a right to be heard in relation to the approval of an agreement.[7] The FW Act does not confer a right on employee organisations (other than in the case of the greenfields agreement) to be covered by an agreement if it was not a bargaining representative. Likewise, the FW Act does not confer upon an employee organisation a role in enterprise bargaining under the FW Act outside of its status as a bargaining representative. The mere fact that an employee organisation has an ongoing relationship with its members and is entitled to represent their industrial interests is not a sufficient basis to conclude that the approval of an enterprise agreement will adversely affect a right, interest or legitimate expectation of that employee organisation.
[70] In similar vein, that an employee organisation has amongst its interests, objects or expectations, that it will obtain and maintain reasonable employment conditions for its members, is in the context of the bargaining framework established by the FW Act, an insufficient basis for there to arise a right, interest or legitimate expectation and thereby a conferral on the employee organisation of a right to be heard in relation to an application to approve an enterprise agreement.
[71] Account should also be taken of the fact that enterprise agreements may confer or deal with the rights and obligations of an employee organisation vis-a-vis the employees and that a new agreement might displace or alter those rights and obligations, but that is not the case here.
[72] Whether an employee organisation which is not a bargaining representative has a right to be heard in relation to an application for the approval of an agreement will depend on the circumstances in each case. In this case, when the rights, interests or expectations asserted by the CFMEU are understood in the legislative context, it is clear that the CFMEU has not established any right, interest or legitimate expectation that would be adversely affected by the decision to approve the Agreement which would give it a right to be heard.
[73] We are therefore not persuaded that the Senior Deputy President erred in not giving the CFMEU the opportunity to be heard or to lead evidence in relation to its opposition to the approval of the Agreement.”[8]
The Unions do not submit that they hold a right, interest or legitimate expectation to be involved in these proceedings. Rather, they seek that the Commission exercise its discretion under s.590 of the Act to grant leave for them to be involved in these proceedings. Section 590(1) provides that the Commission, in its broad discretion, “may, except as provided in this Act, inform itself in relation to any matter in such manner as it considers appropriate”.
In OS MCAP Pty Ltd[9] (overturned on appeal but for different reasons),[10] the Commission as presently constituted, in determining that the unions (in that case) were to only have limited involvement in the enterprise agreement approval proceedings, stated:
“The fact that a union simply has coverage, experience, knowledge and/or an interest in an industry is not, in my view, a prima face (let alone a sufficient) platform upon which to grant a request to be heard under s.590 of the Act. Certainly, as far as the s.590 requests being made by the Unions to be heard in these proceedings, in weighing the exercise of my discretion, I consider these factors to be no more than neutral considerations.
Indeed, where a person (such as a union) was not a bargaining representative for a proposed enterprise agreement, but in any event requests to be heard in the enterprise agreement approval process (simply because they have coverage under their Rules, experience, knowledge and/or an interest in an industry (and, inter alia, a purported interest in workplaces in that industry)), it almost becomes counterintuitive to grant such a request on the basis of those matters alone. I say this in circumstances where the Act already delineates the extent of union representation in collective bargaining (including via a wide range bestowed statutory privileges). However, these privileges do not lend to an a priori right to appear in enterprise agreement approvals where the union has not been a bargaining representative. …”[11]
On the question of the need for a contender in enterprise agreement approval proceedings, I adopt the reasoning of Williams C in Macmahon Contractors Pty Ltd[12], where he states:
“The benefit of a union acting as a contradictor will depend on the particular circumstances of the case and will involve in each case a judgement by the Commission. The absence of a contradictor would be the most common situation the Commission deals with in agreement approval applications and is no way abnormal or in any way inconsistent with the scheme of the Act. This absence of a contradictor of itself is not sufficient reason for the Commission to exercise its discretion and allow a union, that was a stranger to the bargaining process, to be heard over the objections of one or more of the parties to the Agreement.”[13]
Having regard to the submissions filed by the Applicant and the Unions, and by reference to the terms of the Agreement, and the F16 and F17 Forms lodged with the Application, I make the following observations and findings:
a) neither of the Unions were a bargaining representative (default or otherwise) concerning the negotiation, or the making, of the Agreement. Further, the Unions have not identified any specific knowledge as to the Applicant’s workplace, or any actual knowledge that they hold as to the bargaining or making of the Agreement;
b) the Unions do not suggest that they have members employed by the Applicant (to whom the Agreement will apply, or otherwise), and do not suggest any involvement (whatsoever) in the Applicant’s enterprise;
c) in view of (a) and (b) above, the Unions are strangers, not only in respect of the bargaining and the making of the Agreement, but to the Applicant’s workplace/s;
d) the Agreement does not alter or interfere with an employee’s right to choose to become a member of the Unions, and the approval of the Agreement will not affect the Unions’ rights to participate in bargaining for future enterprise agreements with the Applicant, or the Unions’ relevant rights to represent employees under the Agreement (if any relevant current or future employees become members of the Union); and
e) the issues raised by the Unions need to be addressed by the Commission as part of the approval process in any event. The issues raised by the Unions do not, in my view, warrant the need for a contender or third-party intervener in that on their face such issues arise from a desktop analysis of documents filed with the Commission, contain self-labelled “apprehensions” and references to trite law, and call for conclusions based upon speculation, suspicion and the drawing of unqualified adverse inferences.
Having regard to the foregoing, I have determined to decline to exercise my discretion to grant leave for the Unions to be involved or otherwise participate in these proceedings. In the formal sense, the Unions application for leave to intervene in these proceedings is dismissed, as is their request for unredacted versions of documents filed in these proceedings.
Undertakings
The Applicant has provided written submissions and undertakings dated 30 June 2023. These written submissions undertakings arise from concerns raised by the Commission with the Applicant, along with additional concerns identified by the Unions as to the better off overall test (that the Commission as presently constituted equally accepts are concerns for the purposes of s.190(1)(b) of the Act).
The undertakings provided by the Applicant are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that these undertakings resolve the “concerns” raised, that they will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Building and Construction General On-site Award 2020), and that the undertakings will not result in substantial changes to the Agreement.
Conclusion
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.
I am also satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 July 2023. The nominal expiry date of the Agreement is 5 July 2027.
DEPUTY PRESIDENT
Annexure A
[1] CEPU email, 2 June 2023 (10.32am).
[2] Unions’ Submissions, dated 16 June 2023, at [1] to [4] (footnotes omitted).
[3] Applicant’s Submissions, filed 23 June 2023, at [5] (footnotes omitted).
[4] Ibid, at [14] to [26] (footnotes omitted).
[5] Application by Jan de Nul (Australia) Pty Ltd [2016] FWC 7991, at [26]-[29]; DOF Management Australia Pty Ltd [2016] FWC 3792.
[6] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940; (2014) 246 IR 21 (Collinsville Coal Operations Pty Ltd).
[7] See CFMEU v Hamberger and Anor [2011] FCA 719; (2011) 195 FCR 74 in which Katzmann J discusses the meaning of “will be covered” in s.172 of the Act and concludes at [69]-[79] that persons not yet employed but who might in the future be covered by an agreement are not within the class of persons “who will be covered”; See also Mermaid Marine Vessel Operations Pty Ltd v MUA [2014] FWCFB 1317, at [73]- [74]; and CBI Contractors Pty Ltd v CFMEU [2011] FWAFB 7642, at [22]- [23].
[8] Ibid, at [69]-[73] (see also at [53] and [55]).
[9] [2020] FWC 398.
[10] Construction, Forestry, Maritime, Mining and Energy Union; The Australian Workers' Union; The Australian Manufacturing Workers' Union and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v OS ACPM Pty Ltd and OS MCAP Pty Ltd[2020] FWCFB 2434, at [83].
[11] [2020] FWC 398, at [48] to [49]. See also Tandem Building Group [2021] FWCA 3130, at [7].
[12] [2018] FWC 869.
[13] Ibid, at [44].
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