Construction, Forestry and Maritime Employees Union
[2024] FWCA 2755
•5 AUGUST 2024
| [2024] FWCA 2755 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry and Maritime Employees Union
(AG2024/2441)
TRUSTEE FOR PPL (ACT&NSW) DISCRETIONARY TRUST AND CFMEU ACT FINISHING AND FAÇADE TRADES ENTERPRISE AGREEMENT 2021
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 5 AUGUST 2024 |
Application for approval of the Trustee for PPL (ACT&NSW) Discretionary Trust and CFMEU ACT Finishing and Facade Trades Enterprise Agreement 2021
The Construction, Forestry and Maritime Employees Union (CFMEU) has made an application for approval of an enterprise agreement known as the Trustee for PPL (ACT&NSW) Discretionary Trust and CFMEU ACT Finishing and Facade Trades Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The application was initially allocated to Boyce DP. By correspondence to the CFMEU, the Deputy President raised several issues relating to the approval requirements for the Agreement. One of these related to the requirement of s 173 that the employer take all reasonable steps to give notice to employees of the right to be represented by a bargaining representative. The F17B declaration lodged by the employer, the trustee for the PPL (ACT&NSW) discretionary trust (ABN 44 966 550 084), had advised the Commission that a notice of employee representational rights (NERR) was given to employees by email on 18 March 2024. Boyce DP noted in his correspondence that the email referred to in the declaration had not been lodged in the Commission, and that this raised the issue of whether the Commission could be satisfied that s 173 had been complied with. The Deputy President sought lodgment of a copy of the email or submissions.
In reply, the CFMEU submitted that it was not a requirement of the form 17B declaration that the emails be provided to the Commission, and that the declaration was of itself proof that the NERR had been given to employees. It said that evidence that is not inherently uncredible and that is unchallenged had to be accepted, and that it would be unreasonable and wrong of the Commission not to accept the statement in the declaration. It submitted that a requirement by the Commission for such emails to be produced would be prejudicial to parties that chose to distribute the NERR by email because it would unfairly hold them to a higher standard of proof. The CFMEU further submitted that it was a bargaining representative for a significant number of employees covered by the Agreement, that it had no concerns that the Agreement had not been genuinely agreed to by employees, and that paragraph 19 of the statement of principles required the Commission to give this view significant weight. The CFMEU submitted that the Commission was obliged to rely on the statement in the F17B that the NERR was given to employees by email on 18 March 2024.
The application for approval of the Agreement was subsequently reallocated to me. I raised with the CFMEU my concern that the email by which the NERR had been given to employees had not been provided to the Commission. Shortly before the hearing earlier today, the CFMEU sent an email to chambers advising that it maintained its previous submissions to the Commission, that the production of the email was not a legal requirement, and that it would be contrary to s 577 and unreasonable for the Commission to reject the unchallenged statement in the F17B declaration. The CFMEU further stated that, notwithstanding this, it had obtained from the employer the email of 18 March 2024, which it now provided to the Commission.
Having read the email of 18 March 2024, I am now satisfied that s 173 was complied with, and that the Agreement was genuinely agreed to by the employees. However, it is appropriate to say something about the CFMEU’s submissions.
First, the Commission cannot approve a non-greenfields agreement unless it is satisfied that it was genuinely agreed to by the employees covered it (s 186(2)(a)). And it cannot be so satisfied unless, among other things, it is satisfied that the employer complied with s 173 (see s 188(4)(a)). The Commission has a broad discretion as to how it approaches these questions. Section 577 requires the Commission to act quickly and without unnecessary technicality. It does so, dealing with many thousands of agreements a year. But seeking production of a document referred to in a declaration is not a technicality. The Commission does not always ask for such documents, but when it does so, they should be provided. If they are not provided, and if there is no good reason for this, it is only to be expected that the Commission might not be satisfied of the approval requirement to which the documents in question relate. Secondly, the fact that the form 17B declaration document does not require production of the email in this case is irrelevant. The forms are products of the rules. They do not fetter the discretion of a member. Thirdly, the statement in the declaration is not definitive proof of fact. Fourthly, a tribunal is not required to accept unchallenged evidence, particularly in a case where there is no contradictor. Fifthly, there was no question in this matter of a higher standard being applied, or of any prejudice to the employer or the CFMEU. The question was simply one of whether the Commission could be satisfied of the relevant approval requirement. Finally, I accept that the CFMEU was a bargaining representative for a significant proportion of the employees covered by the Agreement. According to paragraph 19 of the statement of principles, where such a bargaining representative supports the approval of an agreement and does not have concerns that the agreement was not genuinely agreed to by the employees covered by the agreement, this should be given significant weight by the Commission in considering whether the agreement has been genuinely agreed. But the principles are pragmatic. They speak of what the Commission ‘should’ do in various respects, not of what it must do in every case. Paragraph 19 does not compel the Commission to accept a bargaining representative’s submission that an agreement was genuinely agreed. Had the email not been provided, I would not have approved the Agreement.
The application was not lodged in the Commission within 14 days after the Agreement was made. However, an acceptable explanation was provided, and I consider it fair to extend the period for lodgment to the date on which the application was made (s 185(3)(b)).
While the application is otherwise in order, the NERR that was provided to employees was not in the correct form. However, I consider this to be a minor procedural or technical error and disregard it. I am satisfied that the employees are not likely to have been disadvantaged by the error (see s 188(5)).
On the basis of the material now before the Commission, I am satisfied that each of the requirements of ss 186 and 187 as are relevant to this application for approval has been met. In accordance with s 186(1), the Commission must therefore approve the Agreement, and I do so.
The CFMEU, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by 201(2), I note that the Agreement covers the CFMEU.
The Agreement was approved on 5 August 2024.
DEPUTY PRESIDENT
Hearing details:
2024
Melbourne, by Microsoft Teams with Canberra
5 August
Appearances:
R. Read for the CFMEU
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