Alstom Limited

[2012] FWA 3116

[2012] FWA 3116

FAIR WORK AUSTRALIA

DECISION

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

Alstom Limited
(AG2012/196)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 11 APRIL 2012

Alstom Limited Marulan Gas Turbine Project Union Greenfield Agreement 2012-2014.

[1] This decision deals with an application for approval of the Alstom Limited Marulan Gas Turbine Project Union Greenfield Agreement 2012-2014 (the Agreement).

[2] This application was lodged with Fair Work Australia (FWA) on 30 January 2012 pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a greenfields agreement. It was made between Alstom Limited (Alstom), the Australian Workers’ Union (AWU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), Construction, Forestry, Mining and Energy Union (CFMEU) and the Transport Workers’ Union of Australia (TWU).

[3] Shortly after the application was lodged, the AWU advised that it considered that there was a fatal procedural deficiency associated with the application in that it was lodged more than 14 days after the last signature to the Agreement. The AWU also advised that, since it signed the Agreement, its position with respect to it had changed.

[4] The application was the subject of a hearing on 22 February 2012. Alstom was represented by Mr Shaw of counsel together with Mr Gardner and Mr Sparkes. Mr Walkaden appeared for the AMWU, Mr Crawford for the AWU, Mr Sinclair and Mr McKinnon for the CEPU and Mr Lawler and Mr Olsen for the TWU. The CFMEU did not attend this hearing but were subsequently provided with the transcript and relevant correspondence.

[5] At this hearing, the AWU confirmed that the only basis upon which it disputed the approval of the Agreement related to the late lodgement of the application.

[6] At the hearing, I also confirmed to the parties that the matter of the late lodgement of the application was the only matter of concern to me and that in all other respects, I was satisfied that the Agreement met the prerequisite requirements for approval.

[7] There was no dispute that the last union signatory to the Agreement was the TWU whose Assistant National Secretary signed the Agreement on 12 January 2012. The application was lodged 18 days later.

[8] Section 185 states:

“185 Bargaining representative must apply for FWA approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.”

[9] Mr Shaw submitted that s.586 of the FW Act gave FWA the power to correct and amend applications to overcome difficulties so as to allow the application to proceed. 1

[10] The AWU, supported by the other unions present at this hearing, asserted that the FW Act did not establish the capacity to extend the time for lodgement of greenfields agreements.

[11] In the course of this hearing I advised the parties that my preliminary view was that there was no capacity to extend the 14 day period specified in s.185 with respect to a greenfields agreement. I advised that Alstom could await a final conclusion in this respect after the CFMEU were given the opportunity to clarify its position, or that it could elect to immediately repeat the agreement making process.

[12] Mr Shaw advised that he needed to obtain instructions in this respect.

[13] No further advice has been received from either Alstom or the CFMEU. This decision has been prepared accordingly.

Findings

[14] Section 182 establishes when an agreement is made. Section 182(3) states:

“182 When an enterprise agreement is made

....

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).”

[15] The last signature is dated 12 January 2012 such that I consider that the Agreement was made on that date.

[16] Section 586 states:

“586 Correcting and amending applications and documents etc.

FWA may:

(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to FWA.”

[17] I do not consider that this provision of the FW Act establishes any capacity for Fair Work Australia to depart from the clear provisions of s.185. This section provides the capacity for Fair Work Australia to extend the 14 day time limit for agreement approval applications other then greenfields agreements. In contrast, s.185(4) is specific in requiring that a greenfields agreement application "must be made within 14 days after the agreement was made." Accordingly, there is simply no discretion to extend that time limit. The use of s.586 to extend that time limit would represent an improper application of the principles of statutory interpretation.

[18] It follows that the application must be dismissed and I do so. I reiterate my earlier invitation to the parties to expedite consideration of an alternative application should one be made.

SENIOR DEPUTY PRESIDENT

Appearances:

B Shaw (counsel) and G Gardner and R Sparkes representing Alstom Limited.

A Walkaden on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

S Crawford on behalf of the Australian Workers’ Union.

P Sinclair and A McKinnon on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

L Lawler and R Olsen on behalf of the Transport Workers’ Union of Australia.

Hearing details:

2012.
Adelaide (by telephone):
February 22.

 1   Transcript, PN75

Printed by authority of the Commonwealth Government Printer

<Price code C, PR522316 >