Civmec Construction and Engineering Pty Ltd

[2013] FWC 8396

[2013] FWC 8396

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Civmec Construction and Engineering Pty Ltd
(AG2013/1288)

DEPUTY PRESIDENT MCCARTHY PERTH, 25 OCTOBER 2013

Application for approval of the Civmec Construction and Engineering Pty Ltd Enterprise Agreement 2013.

Background

[1] This matter concerns an application for approval of an agreement lodged by Civmec Construction and Engineering Pty Ltd (Civmec). The Agreement for which approval is sought is the Civmec Construction and Engineering Pty Ltd Enterprise Agreement 2013 (the National Agreement).

[2] Shortly after the application had been lodged The Construction, Forestry, Mining and Energy Union (CFMEU) contacted my Chambers and expressed concerns in respect of the application. I conducted a conference on 10 July 2013. The CFMEU participated in that conference and agreed to provide brief submissions on a threshold issue identified during the conference, namely whether the National Agreement had been genuinely agreed to. The CFMEU later provided written submissions and Civmec responded to those submissions.

[3] Clause 2 of the Agreement provides the Parties Bound and the Application of the Agreement in the following terms:

“2.1 This Agreement covers:

(a) Civmec Construction and Engineering Pty Ltd (ABN 98 137 816 025) (Employer); and

(b) Employees of the Employer employed in the classifications contained in clause 6

(“Classifications and Wage Rates”) and Appendix 1 of this Agreement in Australia (Employees).

2.2 This Agreement does not cover employees covered by the following agreements:

(a) Civmec Henderson Fabrication Materials Handling & Assembly Yard Works Enterprise Agreement 2013.

(b) Civmec Construction & Engineering Marandoo Mine Phase 2 AWU Greenfields Agreement 2011.

(c) Civmec Construction & Engineering Marandoo Mine Phase 2 CFMEU Greenfields Agreement 2011.

(d) Civmec Construction & Engineering Hope Downs 4 AWU Greenfields Agreement 2011.

(e) Civmec Construction & Engineering Hope Downs 4 CFMEU Greenfields Agreement 2011.”

[4] Essentially, the CFMEU contended that the agreement had not been genuinely agreed to because not all of the employees who would be covered by it were involved in its making.

[5] The CFMEU submitted that:

“10.1 At 21 May 2013 the Civmec Henderson Fabrication Materials Handling & Assembly Yard Works Enterprise Agreement 2013 (Henderson Agreement) was not an enterprise agreement for the purposes of the FW Act. It was made on 21 June 2013 and an application for approval was lodged with the FWC on 2 July 2013.

10.2 A significant number of employees subsequently covered by the Henderson Agreement were, at the time the National Agreement was made, covered by the National Agreement.”

[6] The CFMEU argues that the National Agreement cannot exclude employees covered by the 2013 Henderson Agreement because it was not in existence at the time of the making of this agreement. Civmec argues that it was a typographical error and the reference to the 2013 Henderson Agreement should have been a reference to the 2010 Henderson Agreement.

[7] The CFMEU argue that Civmec therefore failed to notify and involve employees who would be covered by the agreement and as a consequence it cannot have been genuinely agreed. Furthermore, they argue that it is not a matter that can be overcome by an undertaking that can satisfy me that the requirements of the Fair Work Act 2009 (the FW Act) have been met.

[8] Civmec submitted that there was an error in the agreement lodged, and the one provided to employees, in that it referred to the Civmec Henderson Fabrication Materials Handling & Assembly Yard Works Enterprise Agreement 2013. At the time of the making of the National Agreement the Henderson Agreement had not been made. Civmec stated that the reference to the 2013 Henderson Agreement was an error and should have referred to the Civmec Henderson Fabrication, Materials Handling and Assembly Yard Works Union Greenfields Agreement 2010 (2010 Henderson Agreement).

[9] The 2010 Henderson Agreement had nominal expiry date of 30 June 2013 and covers Civmec’s fabrication facility at Henderson, Western Australia. On 2 July 2013 Civmec lodged an application for approval of the Civmec Henderson Fabrication, Materials Handling and Assembly Yard Works Enterprise Agreement 2013 (2013 Henderson Agreement). I approved the 2013 Henderson Agreement on 14 August 2013.

[10] The decision here in respect of the application hinges on whether the employer complied with the FW Act’s obligations in respect of obligatory notifications and explanations for all of those employees that the agreement proposed to cover. The issue then concerns the implications of the error of referring to the 2013 Henderson Agreement rather than the 2010 Henderson Agreement.

[11] Civmec submitted that the National Agreement was never intended to apply to the Henderson employees and that was clearly understood by the employees intended to be covered by the agreement. I requested and was provided with evidence from employees involved in the making of the National Agreement about their understanding and the information that had been provided to them. Statutory Declarations were provided which stated that at a meeting on 24 April 2013 with a representative of Civmec it was explained that the National Agreement would not cover employees at the Henderson facility.

[12] I accept and find that the reference to the 2013 Henderson Agreement in the National Agreement was an error and was intended to be the 2010 Henderson Agreement. Indeed the error is one that could quite easily have been made given that the Henderson employees were in the process of making an agreement themselves. There is no evidence that there was any expectation that another agreement was or could be made that they should be involved in.

[13] Two issues then arise. Firstly, did Civmec comply with the obligations to notify, provide information and explain; and secondly, can the error be corrected.

[14] The requirement of s.180(2) is that the employer must take all reasonable steps to ensure that:

“(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.”

[15] I consider that Civmec did take reasonable steps to ensure that the obligations of s.180(2) were met. In making that finding I do not consider that because there was an error that the written text of the agreement was not provided. In any event the obligation of the employer is to take reasonable steps to ensure the written text is provided. It is clear from the evidence provided to me that it was verbally explained that the agreement would not cover the Henderson facility. Indeed it is not uncommon for the Fair Work Commission (the FWC) to correct typographical errors by applying the powers available though s.586 of the FW Act.

[16] In CJ Manfield Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 1 the Full Bench agreed with His Honour Vice President Lawler who dealt with the matter at first instance that:

“There is simply no question of there being some other agreement, different to the written Agreement annexed to the application for approval, that is the “true agreement” between the Company and the Union, let alone between the Company and the employees. This is a case where the Company contends that it is entitled to rescission on the basis of unilateral mistake, not rectification of a written contract to reflect the true agreement between the parties.”

[17] In the circumstances there however the Full Bench was dealing with a claim that there had been a unilateral mistake by the employer asserting that a term which was an entitlement for a crib break of twenty minutes was mistakenly included in the agreement. The employer there claimed that the inclusion of that term was a unilateral mistake and the agreement should be allowed to be withdrawn. The Full Bench there however found that the evidence could not sustain that there had been a serious mistake. Here the error is not a mistake but rather a typographical error and the evidence is sufficient to support that finding.

[18] I also observe that the situation here can be distinguished from that in National Tertiary Education Industry Union and Monash University and Another (Monash) 2. The FW Act is quite different to the provisions for the approval of agreements under the Workplace Relations Act 1996 (the WR Act). In the WR Act agreements could be made between an employer and an employee organisation or organisations (see s.170LJ(1) of the WR Act). That Agreement then was required to be approved by a valid majority of employees to be covered by it (see s.170LJ(2) of the WR Act). The employer was required to take all reasonable steps to ensure that before approval employees had, or had access to, the agreement in writing (my underlining). Under that legislative regime it was found in Monash that the inclusion of an employee organisation in the agreement in writing provided to employees before they approved it did not comply with the obligation that the agreement had been provided. The WR Act also provided for agreements to be made with employees.

[19] Here the agreement that was made was provided in writing and its terms were explained. The evidence provided that the explanation given was that the agreement did not cover employees at Henderson. The explanation did not appear to state with precision that it would not cover the employees covered by the 2010 or the 2013 agreement. It is easily inferred that whichever was the current agreement it would not cover Henderson employees and neither would any replacement agreement cover or apply to them. The agreement thus made was one which, the employees who voted and the employer knew, did not cover Henderson employees.

[20] I therefore consider that the agreement made was one which excluded Henderson employees from coverage and there was no obligation to involve them in the making of the National Agreement. The written agreement provided to employees reflected that but incorrectly.

[21] I will allow a correction to the agreement. Clause 2.2(a) will now read “(a) Civmec Henderson Fabrication Materials Handling and Assembly Yard Works Union Greenfields Agreement 2010 and Civmec Henderson Fabrication Materials Handling and Assembly Yard Works Enterprise Agreement 2013.” The correction does not alter the agreement at all but rather reflects what was agreed. Indeed, given that the 2013 Henderson Agreement has been approved the alteration to the National Agreement will have no effect on those covered by the National Agreement nor those covered by the 2013 Henderson Agreement.

[22] The objection of the CFMEU was the only one made and was made as a threshold issue. If there are any other submissions the CFMEU wishes to make regarding the approval of the agreement the CFMEU should do so by 5:00pm 5 November 2013.

DEPUTY PRESIDENT

 1   [2012] FWAFB 3534 at paragraph 51.

 2   [2004] AIRC 579.

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