Carrabay Reo Pty Ltd

[2017] FWCA 3857

[2017] FWCA 3857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Carrabay Reo Pty Ltd
(AG2017/1401)

CARRABAY REO PTY LTD ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 21 JULY 2017

Application for approval of the Carrabay Reo Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Carrabay Reo Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Carrabay Reo Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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 undertakings will not result in substantial changes to the Agreement.

[3] 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.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] It is noted that the Construction, Forestry, Mining and Energy Union (“CFMEU”) indicated that it wished to be heard in regard to the application, and provided a written submission highlighting various matters it wished to be heard in regard to. However, it also indicated that it did not believe it was a bargaining representative for the Agreement. It relied instead on its eligibility rules and its extensive history of representation in the building and construction industry.

[6] The Applicant submitted, in response, that the CFMEU should not be heard noting, in particular, the Union’s acknowledgement that it did not believe it was a bargaining representative. It continued to rely on the Full Bench decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd [2014 ]FWCFB 7940 (“Collinsville”) in opposing the request by the Union. It also provided a response to the issues raised by the CFMEU in regard to the application of the “better off overall” test.

[7] The issue about the right to be heard, other than as a bargaining representative, in dealing with applications made under section 185 of the Act was obviously dealt with at length in the Full Bench decision in Collinsville. The Full Bench noted in that decision that it is accepted that the Fair Work Act does not provide for a right of intervention in proceedings before the Commission by a non– party. However, s. 590 does provide that the Commission may inform itself in relation to any matter before it in such manner as it considers appropriate. The Full Bench then continued to deal with the grounds relied upon in that matter by the CFMEU as to why it should be heard.

[8] It indicated in conclusion, that any right, interest, or legitimate expectation that might give rise to a right to be heard must be identified and understood against the framework of enterprise bargaining and Agreement making established by the Act. In this context it noted that agreements are made principally between an employer and employees, and that enterprise agreements operate primarily at the enterprise level, and do not create rights of general application across an industry.

[9] It continued to indicate that whether a Union, that is not a bargaining representative, has a right to be heard in relation to an application for approval will depend on the circumstances in each case.

[10] The CFMEU in the present matter has set out the reasons why it believes it has a right to be heard in regard to the present application. I have had regard to those reasons. I have also had regard to the issues that it has raised in regard to the approval of the Agreement, and the submissions provided by the Applicant in response. Having had regard to the decision of the Full Bench in Collinsville I am not satisfied that the CFMEU should now be given a further opportunity to be heard about the application for approval of the Agreement on the basis that it has not identified or disclosed any legitimate reason or ground that has not already been considered that would warrant it being heard.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 July 2017. The nominal expiry date of the Agreement is 31 March 2020.

COMMISSIONER

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Annexure A