Civmec Construction & Engineering Pty Ltd

[2019] FWC 6662

[2019] FWC 6662

FAIR WORK COMMISSION

DECISION

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

Civmec Construction & Engineering Pty Ltd
(AG2019/1492)

COMMISSIONER WILLIAMS PERTH, 25 SEPTEMBER 2019

Application for approval of the C.C.E. Pty Ltd Enterprise Agreement 2019 - union seeking to be heard.

[1] This decision concerns an application made under section 185 of the Fair Work Act 2009 (Cth) (the Act) for the approval of the C.C.E. Pty Ltd Enterprise Agreement 2019 (the Agreement). The applicant is Civmec Construction & Engineering Pty Ltd (the Applicant or CCE).

Background

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) asserted by filing a Form F18 Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement, and in subsequent submissions to the Commission, that the CEPU was a bargaining representative for the Agreement.This was disputed by CCE.

[3] Consequently, the Commission directed the CEPU to confidentially provide a list of its members who it said would be covered by this Agreement, whom were employed at the time of the vote. Similarly, CCE was required to confidentially provide a list of its employees who would be covered by the Agreement whom were employed at the time of the vote.

[4] The CEPU’s list of members was provided to the Commission on 2 September 2019.

[5] Having compared these two confidential lists it is apparent that the list of CEPU members was significantly larger than the list of employees provided by CCE.

[6] Consequently, the Commission directed the CEPU to review its list of members they had provided and for each employee provide a pay slip or other documentation which demonstrated that at the relevant times they were in fact employed by CCE.

[7] The CEPU in its most recent submission dated 20 September 2019, has confirmed that upon reviewing the pay advices and other documents of its listed members, “... none of the members in the list provided to the Commission were employed by the Applicant as of 1 and 6 May 2019.”  The submission explains the majority of members on the list were employed by another legal entity, not CCE, which is however part of the broader Civmec group.

[8] Self-evidently the CEPU, contrary to its repeated assertions that it was, was not a bargaining representative for the Agreement.

[9] The CEPU provision of erroneous information to the Commission has caused a delay in dealing with this matter. CCE is right to be aggrieved by this in circumstances where on 16 August 2019 (well before the CEPU submitted its list of members) in a submission to the Commission copied to the CEPU, they had explained that there are a number of separate legal entities within the Civmec group of companies and CCE had noted that employees of the other separate legal entities may be members of the CEPU but those legal entities are not a party to the Agreement.

Application to be heard

[10] The CEPU separately now presses an application to be heard by virtue of the Commission's exercising its powers under section 590 of the Act, in the CEPU’s favour as distinct from being heard as of right.

[11] This decision deals only with the CEPU’s application to be heard.

[12] The CEPU argues it has an interest in the Agreement because it has eligibility coverage and membership within the scope of the Building and Construction General On-Site Award 2010 (the Award) which will be displaced by the Agreement.

[13] The union further argues that it has historically had members employed by CCE. It also submits that at the time of the vote on the Agreement it did have members employed by an entity that is related to CCE.

[14] It is submitted it is likely the CEPU will in the future have members who will be covered by the Agreement and so will be entitled to represent their industrial interests.

[15] The CEPU argue the Commission may be assisted by submissions from the CEPU as a contradictor who has familiarity with and knowledge of the Award.

[16] The CEPU also argue they will have the requisite interest in any subsequent decision to approve the Agreement so as to have standing to appeal such a decision under section 604 of the Act.

[17] CCE have from the outset, and continues to, oppose the CEPU being heard regarding this application to approve the Agreement.

[18] It is not the case that the CEPU or its members would be directly affected by a decision to approve the Agreement. Neither were involved in the bargaining process and there is no guarantee that the CEPU or its members will be covered by the Agreement in the future.

[19] The Commission therefore is not required to provide the union with an opportunity to be heard.

[20] The absence of a contradictor of itself does not warrant a grant of leave to be heard.

Consideration

[21] To succeed with its application to be heard the CEPU should show it has a right, interest or legitimate expectation in relation to the Agreements approval or otherwise satisfy the Commission that it is appropriate to exercise its discretion under section 590 of the Act. 1

[22] In this application the CEPU was not involved in the bargaining process and it has neither any right, interest nor legitimate expectation concerning the Agreements approval. Neither the CEPU’s interests nor its members will be directly affected by the outcome of this application.

[23] I note that the members of the CEPU who were employed by another legal entity, not CCE, will not be affected by this Agreement unless they are in future employed by CCE on work covered by the Agreement. These members of the CEPU are in the same situation as any member of the CEPU employed by any other business in the country that is not the Applicant.

[24] There is no suggestion that the CEPU has any knowledge of particular events in this instance that are relevant to the Commission's considerations.

[25] It is not apparent that there is a sufficient reason as to why the Commission should exercise its discretion under section 590 of the Act to allow the CEPU to be heard in this matter.

[26] My decision is that the CEPU will not be heard further regarding this application.

Printed by authority of the Commonwealth Government Printer

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 1   CFMEU v Collinsville Coal Operations Pty Ltd (2014) 246 IR 21 at [52] and [53].