Conco Construction Services Pty Ltd T/A Conco Construction Services Pty Ltd

[2019] FWCA 474

[2019] FWCA 474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Conco Construction Services Pty Ltd T/A Conco Construction Services Pty Ltd
(AG2018/4790)

CONCO CONSTRUCTION SERVICES PTY LTD ENTERPRISE AGREEMENT 2018 – 2022

Building, metal and civil construction industries
VICE PRESIDENT HATCHER	SYDNEY, 25 JANUARY 2019

Application for approval of the Conco Construction Services Pty Ltd Enterprise Agreement 2018-2022

[1] An application has been made for approval of an enterprise agreement known as the Conco Construction Services Pty Ltd Enterprise Agreement 2018-2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act2009 (FW Act) by Conco Construction Services Pty Ltd (Conco). The Agreement is a single enterprise agreement which covers the classifications defined in Appendix 1 of the Agreement within New South Wales. Those classifications are:

•  Level 1 – New Entrant, unskilled

•  Level 2 – Trades Labourer/Skilled Labourer

•  Level 3 – Scaffolder, Concrete Finisher, Steel Fixer

•  Level 4 – Non-Trade – Plant Operator Group A, Rigger, Dogger

•  Level 5 – Trade – Carpenter, Joiner, Bricklayer, Stonemason, Painter etc

•  Level 6 – Leading Hand

[2] The Agreement does not cover senior executive and clerical employees employed by Conco.

[3] The application was accompanied by a Form F17 statutory declaration made by Conor Flynn, Director, on 28 August 2018. The statutory declaration indicated that at the time of the vote two employees would be covered by the Agreement and that both of those employees voted to approve the Agreement.

[4] The Building and Construction General On-site Award 2010 (Award)is the relevant instrument for the purpose of the better off overall test (BOOT) as required under s 186 of the Act. The Agreement stipulates at cl 3.4.3 that where the Agreement is silent on Award provisions, the Award provisions shall apply.

[5] On 24 December 2018 I caused to be issued a letter to Conco identifying issues and concerns with the application. They were as follows:

(1) The Form F17 statutory declaration filed in support of the application identified that only two employees would be covered by the application. However online material apparently published by Conco indicates that they have undertaken projects of a substantial nature in more than one state, have a “team of nearly 100 professionals”, and have recently advertised for a range of vacant positions which would be covered by the Agreement.

(2) The Notice of Employee Representational Rights appended to the Form F17 statutory declaration appeared to have attached to it two notices of appointment of bargaining representatives. It is not clear whether these formed part of the Notice or were separate documents (see Peabody Moorvale Pty Ltd [2014] FWCFB 2042).

[6] On 11 January 2019 Conco responded to the concerns raised. In their correspondence, they outlined that:

•  Conco applied for the application of the Agreement in only NSW for purely operational reasons. Having completed several projects in Western Australia Conco undertook relocation of its operations prior to the making of the Agreement and is now based in NSW.

•  The reference on the Conco website to having a “team of nearly 100 professionals” was inaccurate and for the purpose of marketing Conco as larger than it actually is.

•  Vacant positions were advertised to determine the ease with which Conco might engage on-board new tradesmen should they acquire large-scale projects in future, and never actually eventuated in the on-boarding of new staff.

•  The reference to a “written notice” in the Form F17 of the Applicant was a reference to the Notice of Employee Representational Rights (NERR). The NERR and the notices of appointment of bargaining representatives were issued to employees as physically separate documents.

[7] Having regard to the responses received from Conco, on 15 January 2019 I issued an order for the production of documents requiring Conco to provide to the Commission all documents regarding or concerning persons employed by Conco in any capacity in the period 26 July 2018 to 27 August 2018 inclusive. On 22 January 2019 Conco provided a number of documents including email correspondence, copies of individual flexibility agreements with employees and employees’ payslips covering the specified period. I am satisfied on the basis of the materials provided by Conco that during the specified period and at the time the Agreement was made Conco employed two employees who would be covered by the Agreement and two other senior executive and clerical employees who would not be covered by the Agreement.

[8] On the basis of the material contained in the application, the accompanying statutory declaration and the information and documents provided by Conco, 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.

[9] The Agreement is approved and, in accordance with s 54 of the Act, will operate 7 days from the date of approval. The nominal expiry date of the Agreement is 4 years from the date of approval.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE501484  PR704315>