Application by Acciona Construction Australia Pty Ltd - [2025] FWC 21

[2025] FWC 21

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Application by Acciona Construction Australia Pty Ltd

(AG2024/3685)

DEPUTY PRESIDENT O’KEEFFE

PERTH, 6 JANUARY 2025

Application for approval of enterprise agreement – employee organisations wishing to be heard – applicant opposed employee organisations being heard –

On 19 September 2024 Acciona Construction Australia Pty Ltd (Acciona) applied to the Fair Work Commission (FWC) under s.185 of the Fair Work Act 2009 (Cth) (the Act) for approval of the Acciona Construction Australia Pty Ltd Western Australia Enterprise Bargaining Agreement 2024 (the Agreement). On 30 September 2024 Mr Adam Woodage of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) wrote to the FWC Registry seeking copies of the paperwork filed by Acciona in its application.

On 3 October 2024 Mr Cory Fogliani of Fogliani Lawyers wrote to the FWC Registry advising that he acted for both the CEPU and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and that both unions wished to be heard on the matter of approval of the Agreement. On 11 October 2024 Acciona through its representative Mr Marcus Topp of Kingston Reid lawyers advised that it opposed the CEPU and AMWU (the Unions) being heard.

On 16 October 2024 the matter was allocated to my Chambers. Later that day I advised the parties that I intended to convene a conference to discuss the application, and that conference was subsequently held on 24 October 2024. The concerns of the parties were unable to be resolved at conference, however the parties undertook to continue discussions and report back to the FWC. The parties subsequently met on 30 October 2024 and agreed to provide each other with further information. To allow this exchange Acciona sought a two-week extension of time to report back to the FWC which was granted.

On 15 November Acciona advised that it had written to the Unions and asked if they would agree to continue discussions but had not received a response. Given this, Acciona requested that the matter be programmed for hearing. On 18 November 2024 I caused my Chambers to write to the Unions to determine whether they intended to continue discussions with Acciona. Later that day Chambers received a response indicating that in the absence of a withdrawal of the Acciona application the matter should proceed to hearing.

Given the views of the parties, a mention hearing was held on 26 November 2024 to discuss directions for progress of the matter. At the hearing the issue of the Unions being heard was canvassed and it was resolved that this matter would be dealt with before any further discussion of approval of the Agreement. It was resolved as follows with respect to the Unions being heard:

“The issue of the scope of the intervention by the AMWU and CEPU will be dealt with as follows:
1. By 3 December 2024, the CEPU and AMWU are to file with the Commission and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Acciona Construction Australia Pty Ltd

Details

AGLC: Application by Acciona Construction Australia Pty Ltd [2025] FWC 21
Case: [2025] FWC 21
Decision Date: 6 JANUARY 2025

CaseChat Overview and Summary

Acciona Construction Australia Pty Ltd applied to the Fair Work Commission (FWC) for approval of the Acciona Construction Australia Pty Ltd Western Australia Enterprise Bargaining Agreement 2024. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) sought to intervene in the proceedings to be heard on the application. Acciona opposed the unions being heard.

The primary legal issue was whether the unions should be permitted to intervene and be heard on the application. Acciona argued that the unions were not bargaining representatives, had not established their right to be heard, and that allowing them to intervene would delay the proceedings. The unions argued that their intervention would assist the FWC in rigorously observing the requirements for approval and that the FWC has broad discretion to permit intervention under s.590 of the Fair Work Act 2009.

The Deputy President found that the unions were not claiming bargaining representative status but rather seeking permission to intervene under the FWC's powers. The Deputy President was not persuaded by Acciona's arguments and was satisfied that it was appropriate to exercise the discretion to allow the unions to be heard. Their involvement may traverse other requirements for approval beyond just the Better Off Overall Test. The issue of the unions being heard having been resolved, the matter will proceed to hearing.

No final orders were made in this decision. The matter will proceed to hearing once the issues regarding the scope and genuinely made nature of the agreement are addressed.

Orders