DECISION

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

Baron Forge (NSW) Pty ltd T/A Stone-Tech Australia
(AG2018/5908)

STONE-TECH AUSTRALIA ENTERPRISE AGREEMENT 2018-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 30 JULY 2019

Application for approval of the Stone-Tech Australia Enterprise Agreement 2018-2022.

[1] An application has been made for the approval of an enterprise agreement (“the Application”) known as the Stone-Tech Australia Enterprise Agreement 2018-2022 (“the Agreement”). The application was made by Baron Forge (NSW) Pty Ltd t/a Stone-Tech Australia (“the Applicant”) pursuant to s.185 of the Fair Work Act 2009 (Cth) (“the Act”). The Agreement is a single-enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (“the CFMMEU”) did not file a Form F18 in the matter, nor were they listed as a union bargaining representative involved in the Agreement making process. The CFMMEU had indicated in correspondence that it had believed that they had members covered by the Agreement and therefore submitted that it believed it held status as a bargaining representative. That issue was never pursued to conclusion.

[3] As the matter finally proceeded, the CFMMEU pressed that it had a “right to be heard in (the) matter where they are not a party to the agreement and the role of a non-party in proceedings for the approval of a proposed agreement.” 1

[4] On 28 March, 2019, I issued Directions for the filing and service of Submissions and evidentiary materials by both the Applicant and the CFMMEU. Pursuant to those Directions, the following documents were filed:

(a) The CFMMEU filed an outline of Submissions on 18 April, 2019 (“the CFMMEU Submission”); and

(b) The Applicant filed an outline of Submissions on 11 April, 2019 (“the Applicant’s Submission”), together with outline of Submissions responding to the queries raised by my Chambers on 9 April, 2019;

(c) The CFMMEU filed Submissions in reply to the Applicant’s Submission on 18 April, 2019 (“the CFMMEU Reply Submission”).

[5] On 28 March, 2019, at the Hearing when the Directions for the filing and service of Submissions and evidentiary materials were made, it was agreed that I should determine the application on the papers without a Hearing. There has since been no suggestion that that was not the appropriate course.

The Outstanding Issues

[6] Arising from the Submissions filed, there are two outstanding issues to be determined. They are:

(1) The CFMMEU’s application to be heard in relation to the Application; and

(2) Whether the Agreement was genuinely agreed.

The CFMMEU’s Application to be Heard

[7] As noted at paragraph [2] of this Decision, the CFMMEU is a non-party in the approval proceedings. The Applicant objected to the CFMMEU’s application to be heard as a non-party. In doing so, the Applicant relied on the Decision of Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations [2014] FWCFB 7980 (“Collinsville”) and submitted that the CFMMEU, as a non-party, had no automatic right to be heard, no right of intervention, nor a right to oppose the Agreement in the approval process. By referring to the Decision of Application by Warren [2017] FWC 4787 (“Warren”), the Applicant further submitted that if the Commission were to grant the CFMMEU a right to be heard in these approval proceedings by exercising its discretion under s.590 of the Act, such a discretion did not extend to non-parties.

[8] Section 590 of the Act is expressed as follows:

“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).”

[9] In the CFMMEU Reply Submission, the CFMMEU submitted it would have standing in approval proceedings, so long as the Commission had exercised its discretionary power under s.590 of the Act. The CFMMEU submitted that once the Commission had exercised its discretionary power under s.590 to allow the CFMMEU a right to be heard, the Applicant could not oppose the approval process.

[10] As the Full Bench in Collinsville noted at [72] and [75] respectively:

“[72] Whether an employee organisation which is not a bargaining representative has a right to be heard in relation to an application for the approval of an agreement will depend on the circumstances in each case. In this case, when the rights, interests or expectations asserted by the CFMEU are understood in the legislative context, it is clear that the CFMEU has not established any right, interest or legitimate expectation that would be adversely affected by the decision to approve the Agreement which would give it a right to be heard.”

…

“[75] We would make the observation however, that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person of organisation.”

[9] I am satisfied that the CFMMEU has established, in this case, a right to be heard. The CFMMEU clearly raises a significant allegation that the Agreement was not “genuinely agreed to” in accordance with s.188(1)(a) of the Act. This is an important issue, as failing this requirement, the Agreement would fail the approval process.

[10] For the reasons above, I therefore grant the CFMMEU a right to be heard as a non-party in these approval proceedings by exercising my discretionary power under s.590 of the Act.

Was the Agreement Genuinely Agreed to?

[11] The next issue to be determined is whether the Agreement was genuinely agreed to in accordance with s.188 of the Act. The CFMMEU submits that the employees covered by the Agreement did not genuinely agree to the Agreement, pursuant to s.180(2) of the Act.

[12] The CFMMEU firstly asserted that the Agreement was not “genuinely agreed to” because the Applicant, in their answer to Question 2.4 in their Form F17, did not suggest that employees were given, or had access to, any of the material relevant to the approval process. Secondly, the CFMMEU asserted that the Applicant had failed to elaborate as to what “reasonable steps” were taken.

[13] In particular, the CFMMEU submitted that the Applicant had failed to provide access to the relevant Modern Award. The CFMMEU noted that Clauses 3.4.2 and 3.4.3 of the Agreement provided:

“The relevant award for the purpose of applying the Better-Off-Overall test to this Agreement is the Building and Construction On-site Award 2010. The provisions of this award are expressly incorporated into the terms and conditions of this Agreement.

Where modern award conditions have been modified by the terms of this agreement, remuneration and other conditions of this Agreement have been set a level to ensure that persons employed under this Agreement, are better-off-overall than they would have otherwise under the modern award. However, where the agreement is silent on the reference award provisions, then those modern award provisions shall apply.”

[14] The CFMMEU, relying on the decision of Deputy President Gostencnik in BGC Contracting Pty Ltd 2 (“BGC Contracting”), submitted that:

“For the purposes of ss 180(2) (a)(ii) the Building and Construction General On-site Award(the Modern Award) is material that is to be incorporated by reference in the agreement . Section 180(2) requires an employer to take ‘all reasonable steps’ to:

(a) ensure that during the access period employees employed at the time who were to be covered by the proposed agreement are given the written text of the proposed agreement and any other material incorporated by reference into the proposed agreement; or

(b) ensure that the employees employed at the time who were to be covered by the proposed agreement have access throughout the access period to a copy of those materials”. 3

[15] On 9 April, 2019, I issued correspondence from my Chambers to the parties requesting clarification as to the steps taken to explain the terms and effect of the Agreement to the employees. In the same correspondence, I also requested further information as to how affected employees, who were not present at the meeting, if any, were notified.

[16] On 11 April, 2019, the Applicant filed written Submissions with my Chambers addressing the queries above. In response to my first query, the Applicant submitted that their responses to Questions 2.4 and 2.6 of their Form F17 should be read in conjunction rather than separately. The Applicant also provided a contextual background and submitted that the majority of employees who had voted for the Agreement already had an understanding of the pre-existing Agreement.

[17] The Applicantprovided a detailed reply to those enquiries in the following terms:

“12. This is fully evident in the Company’s responses to Questions 2.4 and

2.6 in the Form F17, where reference was invariably made to the Employees being ‘…physically handed a written copy of the proposed Agreement…’ and further steps being taken by the Company ‘…to ensure that Employees had access to the relevant Modern Award and the Building Code 2016…’.
13. In order to fully satisfy the Deputy President that this aspect of the mandatory pre approval steps were followed, put simply, on 17 September 2018, at the same time that the ‘How and When’ form was issued to the relevant Employees, a separate sheet of paper was physically handed to each of the Employees containing two web-link addresses.
14. On this sheet of paper issued to Employees, the first web-link address referenced the Fair Work Commission web-site to enable access to the Building and Construction General On-site Award 2010 (the reference Award)(via second referenced the Code for the Tendering and Performance of Building Work 2016 (made under section 34 of the Building and Construction Industry (Improving Productivity) Act 2016 (the Building Code 2016) (via

15. Further to this, at the commencement of the Discussion Meeting held on 03 October 2018, the Employees were asked by the Director if they had experienced any difficulty accessing the two documents referred to above via the web-link addresses provided on the information sheet handed to them. None of the Employees reported any difficulties and all Employees indicated that they had been able to access the two reference documents on-line via the internet connected computer terminals, which remain available to them at all times at the Company’s work site. Employees also had access to the Award the Building Code 2016 though their personal home computers (desk-based or lap-top), ipads and smartphones.”

[18] The Applicant also confirmed that all thirty-five (35) employees were present at the final Discussion Meeting of 3 October, 2018, and submitted that all and any references to “…all Employees…” were to mean “the full contingent of thirty-five Employees fairly chosen as relevant Employees to be covered by this Agreement.”

[19] In reply, and reiterating their reliance on BGC Contracting, the CFMMEU submitted that the Commission could not accept the Applicant’s above submissions in the absence of any documentary evidence. 4

[20] I am satisfied that the Applicant’s responses to my queries are sufficient, and disclose that the Applicant ensured that the employees employed at the time who were to be covered by the proposed agreement have access throughout the access period to a copy of those materials.

[21] As Deputy President Gostencnik observed in BGC Contracting (at paragraph [45]):

“There seems little doubt that if all relevant employees received the Final Information Pack and document containing the URL link by the start of the access period, had access to computers or other personal devices with internet access throughout the access period, and were able to access the Coal Award, the step taken by BGC would likely have discharged its preapproval obligation under s.180(2) of the Act.”
[22] While in the balance of paragraph [45] of BGC Contracting Deputy President Gostencnik goes on to note the absence of evidence in that particular matter, the facts that are outlined to substantiate that observation are not at all similar to the matter at hand. The CFMMEU, as noted at paragraph [19] above, have similarly asserted a lack of evidence in this matter.
[23] The difficulty for the CFMMEU is that very early in the approval process they indicated to the Member Assist section of the Commission that “our records indicate that we have members that are covered by the proposed agreement” 5. If that were so, the CFMMEU would have readily available members who could provide statements contradicting the Submissions of the Applicant that augmented, at my request, their responses to Questions 2.4 and 2.6 of their Form F17. No such statements were received.
[24] As such, the best, and only, evidence before the Commission was the Form F17 Statutory Declaration as supplemented by the Applicant’s Submission. I am satisfied that the affected employees had the requisite degree of understanding about the pre-existing Agreement. I am persuaded that the Agreement was “genuinely agreed to”
in accordance with s.180(2) of the Act.
[25] I am satisfied that the relevant requirements of ss.186, 187, 188 and 190 of the Act concerning this Application for approval have been met.
[26] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven (7) days after the issuing of this approval decision. The nominal expiry date of the Agreement is 18 June, 2023.
DEPUTY PRESIDENT
1 CFMEU (sic.) Outline of Additional Submissions dated 18 April, 2019, at [4].
2 [2018] FWC 1466.
3 The CFMMEU Submission at [6].
4 CFMMEU Reply Submission at [15].
5 Email from Dayne Syron to Member Assist, 23 November, 2018, at 2.55pm.
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Baron Forge (NSW) Pty ltd T/A Stone-Tech Australia

[2019] FWCA 4857

30 JULY 2019

DECISION