Canberra Contractors Pty Ltd

[2020] FWCA 4888

[2020] FWCA 4888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Canberra Contractors Pty Ltd
(AG2020/1563)

CANBERRA CONTRACTORS PTY LIMITED AND EMPLOYEES ENTERPRISE AGREEMENT 2019-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 11 SEPTEMBER 2020

Application for approval of the Canberra Contractors Pty Limited and Employees Enterprise Agreement 2019-2023.

[1] Canberra Contractors Pty Ltd (Canberra Contractors) has made an application for approval of an enterprise agreement known as the Canberra Contractors Pty Limited and Employees Enterprise Agreement 2019-2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Earlier in these proceedings, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) contended they were a bargaining representative. This was disputed by Canberra Contractors. In a decision issued on 30 June 2020¹ (the First Decision), I found that the CFMMEU were not a bargaining representative as they did not have members employed by Canberra Contractors at the relevant time. The CFMMEU then sought to be heard pursuant to s.590(1) of the Act.

[3] In the First Decision I granted permission for the CFMMEU to be heard in relation to the approval application. In accordance with the Commission’s directions, both the CFMMEU and Canberra Contractors have filed written submissions in support of their respective cases.

[4] The CFMMEU advanced the following propositions which it says establish that the Agreement should not be approved:

“a. The proposed agreement was not validly made under s182 of the Act, since:

i. The Notice of Representational Rights (NERR) required to be provided to all workers under s173(1) may have been incorrect, on the basis that the Applicant may have attached material that formed part of the NERR and/or one of the entities covered may have failed to notify its workers;

ii. The Commission cannot be satisfied that the Applicant took all reasonable steps to comply with s180(2), as it did not provide access to materials incorporated into the Agreement until the 27th May, only 5 full days before voting commenced on the 2nd June;

iii. The Commission cannot be satisfied that the Applicant took reasonable steps to inform all employees of the time, date, place and method of voting at the commencement of the Access period as required by s180(3) because the only notification took place in person on the 13th May 2020; meaning that any employees absent on that day (including those absent on workers compensation or other forms of long-term leave) were not notified;

iv. The Commission cannot be satisfied that the Applicant took all reasonable steps to ensure that the terms of the agreement and the effects of those terms were explained to the relevant employees as required by s180(5), because all the explanation took place in person on the 13th May 2020, meaning that employees absent on that day (including those absent on workers compensation or other forms of long-term leave) did not receive any explanation;

v. Since the pre-requisite steps at s173 and 180 were not met, no valid request to vote was made in line with s181, and accordingly, no agreement was made under s182.

b. The Commission cannot be satisfied that the proposed agreement has been genuinely agreed to by the employees covered by the agreement, as required by s186(2)(a) and defined by s188, since;

i. The employer did not comply with subsections s180, (2), (3) or (5),

ii. The employer did not comply with subsection 181(2).

c. The Commission cannot be satisfied that the proposed agreement passes the better off overall test, as required by s186(2)(d) on the basis of the exclusions made by clause 8.3 of the Agreement.

d. The Application for the agreement was not properly made in accordance with s185(2), since the F17 form provided with the application is not accurate, and the Applicant was on notice that the contents of the F17 form were inaccurate.”

[5] The submissions filed by the CFMMEU went on to expand upon each of these matters.

[6] Canberra Contractors contested each of the matters raised by the CFMMEU and submitted that many of matters raised by the CFMMEU were speculative and/or irrelevant to this application. It provided detailed submissions addressing each matter raised by the CMMEU. Canberra Contractors also provided a statutory declaration of Mr Paul Macor (Managing Director) in which he provided further information as to the matters raised by the CFMMEU.

NERR

[7] In his statutory declaration, Mr Macor said the NERR did not append the instruments of appointment, and accordingly the issue that arose in Peabody Moorvale Pty Ltd v CFMEU² did not arise here. Further, the NERR had been issued to all employees of Canberra Contractors and G C & G Equipment Pty Ltd in a form consistent with the statutory requirements of ss.173 and 174. It submitted that Canberra Contractors and G C & G Equipment Pty Ltd are single interest employers. I note no evidence to the contrary was submitted by the CFMMEU.

[8] Based on evidence, including the statutory declaration of Mr Macor, I am satisfied and find that the NERR did not append any material which formed part of the NERR, and the relevant employees were provided with the NERR.

Provision of incorporated materials

[9] Canberra Contractors submitted that the CFMMEU’s contention in this regard was founded on an inaccurate interpretation of the Act, in that the Act does not require an employer to comply with both s.180(2)(a) and s.180(2)(b). These subsections are applicable in the alternative. I agree with this submission.

[10] Canberra Contractors submitted that the requirements of s.180(2) have been satisfied because:

a) the provision of hyperlinks to the materials during the access period constitutes ‘all reasonable steps’ as required by s180(2)(a), or alternatively;

b) the materials incorporated by reference in the Agreement were available in the public domain as laws of the land and there was no need for Canberra Contractors to take further steps in providing these materials to employees.

[11] In addition, the Agreement was made available to the relevant employees on multiple occasions, which were detailed in its submissions and the Mr Macor’s statutory declaration.

[12] Canberra Contractors relied on a number of decisions of this Commission in support of its submissions.

[13] Having considered the submissions and the decisions referred to, I am satisfied that Canberra Contractors took all reasonable steps to comply with s180(2), in that it did provide access to materials incorporated into the Agreement via hyperlinks sent by email to relevant employees, and further that the material in question was publicly available well before the access period.

Explanation of terms

[14] Canberra Contractors submitted that contrary to the CFMMEU’s contention, the Commission can be satisfied that the terms of the Agreement were explained to the relevant employees, based on evidence that showed a comprehensive summary sheet explaining the Agreement had been provided to employees, and that an explanation was also provided on site. It was also submitted that the terms of the Agreement were substantially the same as the previous 2016 Agreement that employees were familiar with.

[15] I am satisfied, based on the F17 and its attachments and the statutory declaration of Mr Macor, that an appropriate explanation of the terms were provided to the relevant employees.

Employees not all informed of date, time etc of vote

[16] In response to the CFMMEU’s contention that Commission could not be satisfied that Canberra Contractors took reasonable steps to inform all employees of the time, date, place and method of voting at the commencement of the Access period because the only notification took place in person on the 13 May 2020; meaning that any employees absent on that day (including those absent on workers compensation or other forms of long-term leave) were not notified, I am satisfied based on the statutory declaration of Mr Macor that no employee was absent on the date the notification was made. Accordingly, I find that reasonable steps were taken to inform the relevant employees of the matters required by s.180(3).

Genuine Agreement

[17] It was submitted by Canberra Contractors that there were no grounds for accepting the CFMMEU’s contention that the Agreement had not been genuinely agreed to by the employees, because it was the second round of bargaining for essentially the same Agreement, and the relevant employees are part of a core group of permanent employees.

[18] There is no evidence before me which would support a finding that the employees have not genuinely agreed to the Agreement, and I so find.

BOOT

[19] The Agreement has been carefully scrutinised by both the Commission’s Agreement Approval Team and the Commission as presently constituted. Noting the matters below that are the subject of undertakings, I am otherwise satisfied and find that the Agreement passes the BOOT.

Other matters

[20] Canberra Contractors 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 undertaking will not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

[21] The Agreement contained typographical errors at clause 2 and clause 17.4 and Canberra Contractors has filed amended Agreement pages rectifying the error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[22] 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.

[23] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 September 2020. The nominal expiry date of the Agreement is 17 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE508992 PR722713>

Annexure A

1 [2020] FWC 3431.

2 [2014] FWCFB 2042.