B & B Steelfixing Pty Ltd

[2017] FWCA 4413

[2017] FWCA 4413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

B & B Steelfixing Pty Ltd
(AG2017/332)

B & B STEELFIXING PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 24 AUGUST 2017

Application for approval of the B & B Steelfixing Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the B & B Steelfixing Pty Ltd Enterprise Agreement 2017 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (“the Act”) by B & B Steelfixing Pty Ltd. It is a single enterprise agreement.

[2] Following receipt of the application the Queensland/Northern Territory branch of the Construction, Forestry, Mining, and Energy Union (“the CFMEU”) forwarded an email dated 4 April 2017 to the Commission, which made reference to various matters that it submitted the Commission should have regard to in dealing with the application. These matters went to various pre-approval requirements, mandatory terms, the National Employment Standards, and satisfaction with the requirements of the “better off overall” test. The Applicant’s representative provided an email on 6 April 2017 in response stating that the CFMEU was not a bargaining representative because it had no members employed by the Applicant at the present time, and the CFMEU should not be heard in regard to the application until such time as this issue had been clarified.

[3] The matter was accordingly set down for hearing on 28 April 2017 to deal with the issue of whether the CFMEU had a right to be heard in relation to the application. The date was subsequently vacated at the request of the CFMEU and the matter was instead listed for hearing on 4 May 2017.

[4] On 24 April 2017 the Applicant’s representative provided copies of two Statutory Declarations to the Commission. The first from Mr Brandon Richard Burnett stated that “1. I am not and have never been a member of the BLF or CFMEU.” 1 It was signed on 20 April 2017. The second from Mr Steven Edward Burnett stated “1. I was a member of the BLF/CFMEU prior to 2012. 2. I resigned from the BLF/CFMEU in writing in 2012. 3. I no longer receive any union publications or literature by post or otherwise.”2 That declaration was also signed on 20 April 2017. On 26 April 2017 the Commission forwarded copies of those Statutory Declarations to the CFMEU.

[5] The Applicant’s representative continued to submit in the proceedings that the CFMEU was not a bargaining representative for the proposed Agreement as the employee that it claimed was a member, Mr Stephen Burnett, had sworn in a Statutory Declaration that while he had been a member of the Union up until 2012 he had not been a member since that time after providing his written resignation to the Union. The CFMEU submitted in response that its right to be heard derived from the fact that it was a bargaining representative because it records indicated that it had a member employed by the Applicant business, being Mr Stephen Burnett.

[6] I am satisfied that it is appropriate to determine this matter by relying on the Statutory Declaration of Mr Stephen Burnett dated 20 April 2017 indicating that he resigned his membership from the Union in writing in 2012, and therefore the CFMEU does not have members employed by B & B Steelfixing Pty Ltd and is not a bargaining representative for the proposed Agreement.

[7] After reviewing the application and the terms and conditions contained in the Agreement, together with the Employer’s F17 Statutory Declaration, the Commission also sought clarification from the Applicant about certain aspects of the proposed Agreement. The Applicant responded by indicating that it was prepared to provide an undertaking in response to matters that had been raised. The Commission also had regard to the issues raised in correspondence by the CFMEU.

[8] After reviewing the terms of the undertaking I am satisfied that it will not cause financial detriment to any employee to be covered, or result in substantial changes to the Agreement. The undertaking contained in the attached document is accordingly accepted and in accordance with s.191 of the Act will now be taken to be a term of the Agreement.

[9] I am otherwise satisfied that each of the requirements contained in ss. 186, 187 and 190 of the Act, as are relevant to this application for approval, have been met. The Agreement is approved and in accordance with s.54 of the Act will operate from 31 August 2017. The nominal expiry date of the Agreement is 30 August 2020.

COMMISSIONER

Appearances:

M Belfield for the Applicant.

A Borg for the Construction, Forestry, Mining and Energy Union.

Hearing details:

2017.

Melbourne (telephone hearing):

May 4.

ANNEXURE A

 1 Statutory declaration of Brandon Richard Burnett, signed 20 April 2017 at [1].

 2   Statutory declaration of Stephen Edward Burnett, signed 20 April 2017 at [1]-[3].

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