Acciona Ferrovial Harwood Joint Venture

[2018] FWC 6559

[2018] FWC 6559

FAIR WORK COMMISSION

DECISION

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

Acciona Ferrovial Harwood Joint Venture
(AG2018/1718)

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 30 OCTOBER 2018

Application for approval of the Pacifico Harwood Enterprise Agreement 2018.

[1] Acciona Ferrovial Harwood Joint Venture (AFHJV) have made an application for approval of the Pacifico Harwood Enterprise Agreement 2018 (the Agreement), in accordance with section 182(3) of the Fair Work Act 2009 (the Act).

[2] AFHJV have stated that the Agreement is a greenfields agreement that has negotiated with the Australian Workers’ Union NSW Branch (AWU) and applies to the Bridge over Clarence River at Harwood Project (the Project).

[3] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has sought to be heard in relation to the approval of the proposed Agreement. The CFMMEU has provided written submissions as to why it should be heard and expressed concerns that the Project should not be covered by a greenfields agreement on the basis that the joint venture constructing this Project is the same or very similar to the joint venture that recently constructed another section of the Pacific Highway on the north coast of NSW. The CFMMEU is also concerned that a number of workers from the previous project have simply transferred to the new project.

Legislative Framework

[4] The relevant provisions of the Act in relation to this application are:

“Section 172 Making an enterprise agreement

Single-enterprise agreements

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Greenfields agreements

(4) A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.”

[5] Following a Conference, Directions were issued by the Commission, as currently constituted. The parties agreed that the issue in relation to the CFMMEU’s application “to be heard” will be dealt with in this Decision and that the matter will be determined “on the papers”.

[6] Due to unforeseen circumstances, the reply submissions from AFHJF were received on 9 October 2018.

Submissions

[7] I have taken into account the submissions of the parties in reaching this decision.

[8] I have given no weight to the hearsay evidence of Mr Rielly, however, the written submissions of the CFMMEU raise an interesting issue in relation to the making of a greenfields agreement during the construction phase of a project.

[9] This issue alone is worthy of the Commission receiving evidence and submissions.

[10] I have taken into account the Full Bench decision in CFMMEU v CPB Contractors Pty Ltd. 1 Whilst the Full Bench did not uphold the CFMMEU’s objection in relation to being denied procedural fairness by not being heard at first instance, the Full Bench directed that the CFMMEU be heard at the rehearing of the matter.

[11] Section 590 of the Fair Work Act, 2009 (the Act) states:

“Section 590

Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2)  Without limiting subsection (1), the FWC may inform itself in the following ways:

(a)  by requiring a person to attend before the FWC;

(b)  by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c)  by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d)  by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e)  by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f)  by conducting inquiries;

(g)  by undertaking or commissioning research;

(h)  by conducting a conference (see section 592);

(i)  by holding a hearing (see section 593).”

Conclusion

[12] I am satisfied that the circumstances pertaining to this Agreement contain sufficient peculiarity to warrant further investigation by the Commission. I am satisfied that the CFMMEU could provide assistance to the Commission in this exercise.

[13] In accordance with s.590(2)(b) of the Act, I invite the CFMMEU to make submissions in relation to the approval of the Agreement.

[14] Directions will be issued separately in relation to the future proceedings.

COMMISSIONER

 1   Construction, Forestry, Maritime, Mining and Energy Union v CPB Contractors Pty Ltd and The Australian Workers' Union [2018] FWCFB 3702.

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