ALE Heavylift (Australia) Pty Ltd

[2021] FWCA 4865

[2021] FWCA 4865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ALE Heavylift (Australia) Pty Ltd
(AG2021/6222)

ALE HEAVYLIFT (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 17 AUGUST 2021

Application for approval of the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ALE Heavylift (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of the agreement.

[3] The copy of the Agreement as provided to the Commission included, at the end of the document, the text of the Model Flexibility Term and, at the start of the Agreement stating “Note - the model flexibility term is taken to be a term of this agreement and can be found at the end of the agreement”. Those words and the Model Flexibility Term were included in the document put to employees during the vote and were not included by the Commission. For the avoidance of doubt, the Commission has not exercised the obligation provided for within s.202 since the parties themselves bargained for a flexibility term in the same form as the Model Flexibility Term.

[4] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) have requested and was provided with copies of the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s Support Declaration in support of an application for approval of an enterprise agreement, and other documentation filed in support of the application in redacted form to protect personal information. While providing written submissions to the Commission on its interest the CFMMEU was given an opportunity to make oral submissions on the subject but declined.

[5] Upon allocation of the application to me, I sought the Applicant’s views on the CFMMEU’s request for access to documents and request to be heard. The Applicant opposes both requests as set out below.

The CFMMEU has not demonstrated that it is a bargaining representative

[6] The Applicant submits that the CFMMEU has not demonstrated that it has a member who is:

● an employee of ALE; and
● would be covered by the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2021.

[7] It has been accepted by the Commission that the Act does not provide for a right of intervention in proceedings before the Commission by a non-party. 1

The CFMMEU otherwise has no right to be heard, as it has no right, interest or legitimate expectation that will be adversely affected by the decision

[8] The Applicant submits relying on the reasoning in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations 2 that the CFMMEU was not involved in the bargaining process and it has neither any right, interest or legitimate expectation concerning the approval of the Agreement. Neither the CFMMEU’s interests nor its members will be directly affected by the outcome of this application.

It is not necessary or appropriate for the FWC to inform itself through exercising its discretion under s.590.

[9] The Applicant finally submits that even if the CFMMEU demonstrates it is entitled to represent the industrial interests of the employees covered by the Agreement, that is not of itself a sufficient basis to grant a right to be heard under s.590 of the Act. 3 They submit the CFMMEU’s involvement will not assist the Commission and it is unnecessary and inappropriate for the CFMMEU to assist the Commission with respect to the application, as the Commission is appropriately equipped to address the application. Further, any involvement of the CFMMEU would delay the approval process4

[10] The CFMMEU subsequently made an application to make submissions regarding the approval application recognising it was not a bargaining representative involved in the negotiation of the Agreement. The CFMMEU provided written submissions in support of them being heard and regarding objections they have to the Agreement being approved by the Commission.

[11] It is submitted that the CFMMEU has an interest in the Agreement because its scope covers industries in which it and its members have an interest. It apprehends that approval of the Agreement may be adverse to its interests, with the coverage of the Agreement being used to cover and apply to employees of the Applicant’s parent company, Mammoet Australia Pty Ltd. The CFMMEU submits the Commission should exercise its discretion under s.590 of the Act and allow it to be heard in this matter.

[12] The Agreement which is the subject of this application was made on 30 June 2021. If approved by the Commission, the Agreement will replace the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2016 5 (the 2016 Agreement).

[13] The 2016 Agreement, twice varied, is a greenfields agreement originally approved by the Commission to operate from 25 January 2017. The first variation, 6 operating from 14 December 2018 was on the basis that it affected 29 employees,7 with the only union or employee bargaining representative being the Australian Workers’ Union (the AWU).8

[14] The second variation to the 2016 Agreement, 9 operating from 22 September 2020 affected 42 employees;10 again, the AWU was the only union or employee bargaining representative involved in making the variation.11 The current application is stated in the Form F17 Employer’s Support Declaration as covering 2 employees at the time of the vote in support of making the agreement. The Form F16 Application for approval discloses that the AWU was the only union bargaining representative in the bargaining for the Agreement and that there were no employee bargaining representatives.

[15] If a discretion were to be exercised by me to allow the CFMMEU to be heard in this matter it would not be consistent with the employees’ preferred and consistent choice of bargaining representative since the first variation was made to the 2016 Agreement. There is no history of CFMMEU coverage in this matter, merely a faint hope of such coverage. It would also potentially invite an unpicking of matters specifically bargained for in the making of the Agreement presently before the Commission. There is no submission on the part of the CFMMEU, and certainly no evidence before me, to the effect the AWU did not or was unable to properly discharge its responsibilities in bargaining to the employees covered by the Agreement. There is no submission to the effect that approval of the Agreement would impede future attempts by the CFMMEU to have as members employees who are within its scope and coverage. The submissions in respect of a corporate ruse being put in place to use the device of this Agreement to cover employees presently engaged by the Applicant’s parent, Mammoet Australia Pty Ltd, are insubstantial and include no persuasive material.

[16] The CFMMEU has not put forward a sound reason why the Commission should exercise its discretion under s.590 of the Act and allow it to be heard in this matter. Accordingly, the CFMMEU will not be heard further regarding this application.

[17] 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.

[18] The Australian Workers' Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[19] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 August 2021. The nominal expiry date of the Agreement is 17 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE512660  PR732620>

1   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations [2014] FWCFB 7940.

 2   [2014] FWCFB 7940.

 3   Sommerville Electric Pty Ltd [2019] FWC 7876.

 4   Email from Herbert Smith Freehills, 29 July 2021.

 5   As varied, [2020] FWCA 5083, AE423060.

 6   [2018] FWCA 7289.

 7   AG2018/3523, Form F23A (Employer’s Support Declaration), filed 1 August 2018.

 8   AG2018/3523, Form F23 (Application Form), filed 1 August 2018.

 9   [2020] FWCA 5083.

 10   AG2020/2574, Form F23A (Employer’s Support Declaration), filed 28 August 2020.

 11   AG2020/2574, Form F23 (Application Form), filed 28 August 2020.

Annexure A