Construction, Forestry and Maritime Employees Union
[2024] FWCA 3646
•21 OCTOBER 2024
| [2024] FWCA 3646 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry and Maritime Employees Union
(AG2024/2984)
A.W. EDWARDS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2024-2027
| Building, metal and civil construction industries | |
| COMMISSIONER MATHESON | SYDNEY, 21 OCTOBER 2024 |
Application for approval of the A.W. Edwards Pty Ltd / CFMEU Collective Agreement 2024-2027
An application has been made for approval of an enterprise agreement known as the A.W. Edwards Pty Ltd / CFMEU Collective Agreement 2024-2027 (Agreement). The application was made by the Construction, Forestry and Maritime Employees Union (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.
The notice of employee representational rights that was provided to employees was not in the correct form. I consider this to be a minor procedural or technical error of the nature contemplated by s.188(5) and am satisfied that the employees are not likely to have been disadvantaged by the error.
A ‘Form F17B – Employer’s declaration in support of an application for approval of a single-enterprise agreement (other than a greenfields agreement) – notification time on or after 6 June 2023’ (Initial Form F17B) was filed with the application.
On 15 August 2024 the Commission wrote to the parties seeking further information. That correspondence stated that the types of information requested included copies of:
- any document functioning as explanatory material to the agreement, including summaries of the terms and comparisons of the agreement to the Modern Award or previous agreements;
- any document notifying employees of the details of the vote, including the time, place and method of the vote;
- a copy of any email or letter providing employees with: a copy of the Notice of Employee Representational Rights, a final copy of the agreement, incorporated material to the agreement, or notice of the vote;
- any further documentation which supports the responses provided to the questions in the forms and documents, such as meeting minutes and records of attendance;
- any responses to the questions in the forms and documents that have been left blank; and
- any other notices, memoranda or emails that have been referred to in the forms and documents of the application.
On 20 August 2024 the Applicant provided copies of the explanatory material it says was provided to employees.
The employer responded on 26 August 2024 providing further information and noted that the contents of the Initial Form F17B had been prepared by the Applicant and not the representative of the employer who appeared to have signed the Initial Form F17B. It was also apparent from that response that there were inaccuracies in the Initial Form F17B.
The employer is not a large business and the questions in the Form F17B raise technical matters concerning the provisions of the Act that the Commission is required to have regard to in deciding whether to approve an enterprise agreement. While it is common practice for employers in the industry to seek the assistance of the Applicant in completing documentation relevant to an application for approval of an enterprise agreement for which it is a bargaining representative, it is important to note that the Form F17B is a declaration made on behalf of an employer and it is important that the person making that declaration ensure that its contents are accurate.
As a result, the Commission wrote to the employer and directed that the employer file an amended Form F17B addressing the inaccuracies. The Commission also required the employer to disclose any concerns it had regarding the application by 2 October 2024.
On 2 October 2024 the employer filed an amended Form F17B (Amended Form F17B) addressing inaccuracies. Upon consideration of the Amended Form F17B, the Commission had residual concerns about whether the employer complied with s.180(5) of the Act and whether a majority of employees voted in favour of the Agreement. As such, the matter was listed for hearing and the Commission put the parties on notice that:
the employer would be asked to provide sworn evidence clarifying what steps it took to ensure the terms of the Agreement and their effect were explained to employees in accordance with s.180(5).
if the steps taken by the employer included seeking to have the Applicant provide an explanation, the Commissioner would ask the Applicant to provide sworn evidence from a person with requisite knowledge regarding whether this explanation was provided, when and whether the explanation was in line with the explanatory notes already provided to the Commission by the Applicant;
the Applicant would be asked to provide sworn evidence from a person with requisite knowledge of the outcome of the vote, noting the vote was conducted by a show of hands and additionally or in the alternative, the Commissioner would also likely consider the evidence of any employees present at the time of vote to be relevant.
In contemplation of this, the Applicant filed a copy of a Statutory Declaration sworn by Mikel Dacko, State Organiser for the Applicant along with attachments including an attendance sheet in respect of those employees who participated in the vote. The Statutory Declaration addressed the above matters and the matter proceeded to hearing on 9 October 2024. No objections to the application were made and the evidence of Mr Dacko was not contested.
On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.
The Construction, Forestry and Maritime Employees Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 October 2024. The nominal expiry date of the Agreement is 4 July 2027.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<AE526440 PR780400>
0
0
0