Canberra Contractors Pty Ltd

[2020] FWC 3431

[2020] FWC 3431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Canberra Contractors Pty Ltd
(AG2020/1563)

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	SYDNEY, 30 JUNE 2020

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

[1] An application has been made for approval of an enterprise agreement known as the Canberra Contractors Pty Limited and Employees Enterprise Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Canberra Contractors Pty Limited (Applicant).

[2] On 9 June 2020 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) sought documents from the Commission with respect to the application. Those documents were later provided to the CFMMEU in redacted form.

[3] On 12 June 2020 the CFMMEU wrote to the Commission seeking to be heard in relation to the application on the basis that the union is a bargaining representative and has members within the scope of the proposed agreement. The CFMMEU subsequently submitted that if it is determined that the union was not a bargaining representative, the Commission should exercise its power under s.590 of the Act to inform itself and allow the CFMMEU to be heard.

[4] The Applicant opposed the CFMMEU’s request and disputed the union’s claim that it was a bargaining representative. In support of its contention, the Applicant provided to the Commission a number of documents, on a confidential basis, which included the instruments of appointment of bargaining representatives and a list of employees at the time of the vote.

[5] In reply, the CFMMEU provided a document to the Commission, also on a confidential basis, which identified its members who are believed to be employed by the Applicant.

[6] A hearing was conducted by telephone on 30 June 2020 to deal with two matters, firstly whether the CFMMEU is a bargaining representative and secondly whether the CFMMEU should be heard under s.590 of the Act. Mr M Khaira of Master Builders Association of the ACT appeared for the Applicant and Mr T Fischer appeared for the CFMMEU.

[7] Based upon a review of the documents made available to me by the parties, I expressed to the parties at the hearing that it appeared that CFMMEU did not have any members employed by the Applicant at the relevant time. Mr Fischer submitted that the union would not challenge any finding on that point and instead sought to be heard pursuant to s.590(1) of the Act.

[8] Both parties made brief oral submissions in respect of s.590(1) and relied on the written submissions filed prior to the hearing.

[9] Section 590 of the Act confers a broad power on the Commission 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 or organisation.

[10] Having considered the oral and written submissions from the parties, I have determined to permit the CFMMEU be heard on the following basis:

1. That the CFMMEU is to be provided with a blank version of the instrument of appointment.

2. No further documents (ie. those requested in unredacted form) will be provided to the CFMMEU.

3. That the CFMMEU may make written submissions by no later than 3pm on Friday 3 July 2020 as to the matters relating to the approval of the Agreement about which they wish to be heard.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720621>