Central SEQ Distributor-Retailer Authority T/A Queensland Urban Utilities

[2018] FWCA 6754

[2018] FWCA 6754

FAIR WORK COMMISSION

DECISION

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

Central SEQ Distributor-Retailer Authority T/A Queensland Urban Utilities
(AG2018/2526)

QUEENSLAND URBAN UTILITIES' (QUU) OPERATIONAL AND FIELD EMPLOYEES' ENTERPRISE AGREEMENT 2018

Water, sewerage and drainage services
DEPUTY PRESIDENT ASBURY	BRISBANE, 31 OCTOBER 2018

Application for approval of the Queensland Urban Utilities' (QUU) Operational and Field Employees' Enterprise Agreement 2018.

[1] The Central SEQ Distributor-Retailer Authority T/A Queensland Urban Utilities (QUU) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Queensland Urban Utilities' (QUU) Operational and Field Employees' Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] On 6 August 2018, correspondence was sent from the Member Assist Team of the Commission on behalf of Commissioner Lee, raising concerns with a clause of the Agreement relating to abandonment of employment and inviting QUU to provide an undertaking in relation to that concern. The correspondence also raised an issue with the form of the signature page of the Agreement and requested a form F18 statutory declaration be filed on behalf of one of the employee organisations listed in the Form F16 Application for approval filed by QUU.

[3] On 8 August 2018 an undertaking was provided by QUU in relation to the operation of clause 3.12 of the Agreement which deals with abandonment of employment. Pursuant to s.190 of the Act, I accept the undertaking. In accordance with s.201(3) of the Act I note that a copy of the undertaking is attached to the Agreement and forms part of the Agreement.

[4] The Australian Municipal, Administrative, Clerical and Services Union (the ASU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Plumbing Division – Queensland Branch (the CEPU), and the Australian Workers’ Union have given notice under s.183 of the Act of wanting to be covered by the Agreement. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations. It is noted that the ASU, the CEPU and the AWU while not supporting the approval of the Agreement, did not seek to advance any arguments in objection to its approval.

[5] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) also sought to be covered by the Agreement asserting that it was a bargaining representative for the Agreement, on the basis that it had members who are covered by the Agreement and was entitled to represent the industrial interests of one or more of the employees covered by the Agreement. QUU disputed that the CFMMEU was a bargaining representative and asserted the CFMMEU was not entitled to represent the industrial interests of any employee covered by the Agreement.

[6] Following directions being issued in relation to the objection to the CFMMEU’s entitlement to represent the industrial interests of employees covered by the Agreement, and a number of hearings in relation to that issue, the CFMMEU sent correspondence to my chambers on 22 October 2018 stating that it while it maintained it had status as a bargaining representative, it no longer wished to be covered by the Agreement. The CFMMEU also indicated that it took issue with a number of procedural decisions I made in relation to the determination of its status as a bargaining representative.

[7] In short, the CFMMEU sought to establish the principle purpose for which employees of QUU were employed, by reference to GPS data from all machinery operated by employees covered by the Agreement rather than by calling evidence from its members about these matters on the basis that the Union alleged that its members feared victimisation if they gave evidence to the Commission. I did not accept that submission and refused an application for an order to produce such data on the basis of my view that the data would not be determinative of which employee had operated a particular machine for any period of time. I also indicated my view that the most efficient manner of dealing with the question of the CFMMEU’s right to represent employees covered by the Agreement would be for the CFMMEU to call evidence from a member or members in relation to matters such as the work that they perform and the proportion of time spent on that work. I also made clear that if the CFMMEU wished to assert that its members had a well-founded fear that they would be victimised if they gave evidence to the Commission, then such evidence could be placed before the Commission in the form of statements from those members (which could be redacted) so that the basis for the assertion could be considered.

[8] The CFMMEU carried the onus of demonstrating that it has the right to represent employees covered by the Agreement. The CFMMEU declined to participate in the proceedings on the basis that I determined it should be conducted and accordingly, to the extent I am required to consider this matter for the limited purposes of approving the Agreement, I am unable to be satisfied that the CFMMEU is a bargaining representative for the Agreement.

[9] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. In particular I note that the Form F17 Employer declaration contains a detailed comparison which is appended to the Form in relation to terms of the Agreement that are more beneficial and less beneficial when compared to terms of the relevant reference instrument. The Form F17 also sets out details of the manner in which an explanation of the terms of the Agreement was provided to the relevant employees.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 November 2018. The nominal expiry date of the Agreement is 30 April 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE500646  PR701966>