Construction, Forestry, Maritime, Mining and Energy Union
[2018] FWC 4495
•31 JULY 2018
[2018] FWC 4495
The attached document replaces the document previously issued with the above code on 31 July 2018.
Corrects a typographical error in the preamble and [2]
Associate to Commissioner McKinnon
Dated 1 August 2018
| [2018] FWC 4495 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2843; AG2018/3174)
COMMISSIONER MCKINNON | MELBOURNE, 31 JULY 2018 |
Application for approval of the Marveldale Pty Ltd T/A East Coast Contractors and CFMMEU Union Collective Agreement 2018-2019; Application for approval of the Pacific Industries (Aust) Pty Ltd and CFMMEU Union Collective Agreement 2018-2019.
[1] Application has been made for approval of single enterprise agreements known as the Pacific Industries (Aust) Pty Ltd and CFMMEU Union Collective Agreement 2018-2019 (the Pacific Industries Agreement) and the Marveldale Pty Ltd t/a East Coast Contractors and CFMMEU Union Collective Agreement 2018 -2019 (the Marveldale Agreement) (together, the Agreements).
[2] The applications were both made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Agreements cover employees engaged in construction work in Queensland and the Northern Territory who are employed by Pacific Industries (Aust) Pty Ltd (Pacific Industries) and Marveldale Pty Ltd (Marveldale) respectively.
[3] The applications were accompanied by Form F17 statutory declarations made by Bruce Rochester (Pacific Industries) and Edward Butler (Marveldale).
[4] The applications were heard on 31 July 2018 and Mr Rochester and Mr Butler were required to attend the hearing. The purpose of the hearing was, in addition to dealing generally with the application for approval, to create an opportunity for further evidence to be given on the steps taken in relation to the making of the Agreements. The CFMMEU appeared at the hearing. Neither Pacific Industries nor Marveldale were represented at the hearing and Mr Rochester and Mr Butler did not attend.
[5] Prior to the hearing, I sought additional information about the steps taken by the employers in connection with the making of the Agreements. A revised Form F17 statutory declaration was declared by Mr Butler on 12 July 2018 in relation to the Marveldale Agreement. The revised Form F17 adopted, in almost identical form, the responses provided in the Form F17 declared on 9 July 2018 and filed in support of the Pacific Industries Agreement.
[6] The Agreements apply to a wide range of construction work in Queensland and Northern Territory. The terms of two modern awards are incorporated as terms of the Agreements, with the more favourable of any inconsistent terms prevailing. The Queensland Industrial Relations Commission Order (No B585 of 2003) Apprentices and Trainees Wages and Conditions (Excluding Certain Queensland Government Entities) 2003 (QIRC Order 2003) is incorporated. The Agreements are said to displace the Queensland Industrial Relations Commission Order (No. B1849 of 1997) Supply of tools to apprentices. 1
[7] There is no information before the Commission about the extent to which the range of work covered by the Agreements is performed by the employers or employees or whether the employees who made the Agreements were broadly representative of the group of employees to be covered by them.
[8] At the time the Pacific Industries Agreement was made, it was said to cover four employees in the cladding industry. At the time the Marveldale Agreement was made, it was said to cover 120 employees in the concreting industry. In my view, it is unlikely that the agreement making process for an employer of four employees was precisely the same as the agreement making process for an employer of 120 employees. In each case there is a suggestion that employees were working across multiple sites. 2 In relation to the Marveldale Agreement, that included 40 casual employees, which roughly corresponds with the number of employees that did not vote for the Agreement.3
[9] There is insufficient material before me about the actual steps taken by the employers to ensure that during the access period for the Agreements, employees were given a copy of the Agreements and other relevant materials or that they had access throughout that period to those materials. There is no evidence that QIRC Order 2003 was made available to employees during the access period for the Agreements as required by section 180(2) of the Act. In each case the state of the evidence is that only a copy of the Agreement was provided. 4
[10] There is insufficient material before me to establish what employees were told about the time and place of the vote and the voting method to be used by the start of the access period as required by section 180(3). The evidence is that employees were told by Mr Butler and Mr Rochester respectively that the vote would be conducted on a certain date “on the sites they would be working on” and that the voting method would be by show of hands. 5 While I do not discount the possibility, it is not clear how 120 employees across multiple sites could have reasonably voted by show of hands on a single day. There is no evidence before me about how many sites were involved, or how many employees were at each site, or how employees knew which site they would be working on at least three weeks in advance so that they would have known where to be to participate in the voting process at the relevant time.
[11] Other than what the CFMMEU described as its ‘template responses’ to the questions asked in each Form F17 statutory declaration 6, there is no evidence as to the actual content of the explanation provided to employees about the Agreements or their effect on employees.7
[12] The evidence does not establish who completed the Form F17 statutory declarations filed in support of the Agreements. The largely identical content of the Form F17 declared on behalf of Pacific Industries on 9 July 2018 and the Form F17 declared on behalf of Marveldale on 12 July 2018 creates reasonable grounds for concern about the reliability of the information provided. That concern is not allayed by the submissions of the CFMMEU that the contents in each case were most likely completed by administrative employees of the CFMMEU, based on information provided to them by the employers. There is no evidence before me about whether information was given to the CFMMEU to assist in preparing the statutory declarations, and if so, what that information was.
[13] I accept that it is efficient for the CFMMEU to provide template responses in supporting documentation for agreement approval applications to employers for them to sign before an application to the Commission is made. However, just because the Act prescribes a set of common requirements for the making of enterprise agreements does not mean the steps taken by an employer to meet those requirements will always be the same. The Commission cannot rely on what a party “anticipates” will occur in lieu of what in fact actually occurred. Instead, the Commission must make relevant inquiries, including about the content of information communicated to employees in connection with the agreement making process, so as to reach the state of satisfaction required to find that the necessary pre-approval steps have been taken and that the enterprise agreement has been genuinely agreed. 8
[14] A person who makes a statutory declaration in support of an enterprise agreement approval application is taken to have attested to their own knowledge of the relevant facts. That they do so is important because the Commission relies on those sworn facts in its assessment of whether the requirements for agreement approval have been met. As a Full Bench of this Commission recently confirmed, it is a serious matter and a criminal offence for a person to intentionally make a false statement in a statutory declaration. Under section 11.2(1) of the Schedule to the Criminal Code Act 1995 (Cth), a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly”. 9 There is insufficient material before me to find that the Form F17 statutory declarations in each matter contain false statements and I do not propose to refer them on for further action on that basis.
[15] There is no suggestion that the Agreements do not pass the better off overall test or that they might not, with adequate evidence, have met the requirements for approval.
[16] However, on the material before me, I am not satisfied that the pre-approval steps required by section 180(2) and section 180(3) of the Act were taken in relation to either of the Agreements. I am also not satisfied on the materials that the Agreements were genuinely agreed to by relevant employees for the purposes of section 186(2). It follows that the Agreements cannot be approved.
[17] The application for approval of each of the Agreements is dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR609574>
1 Response to question 3.2, Form F17 statutory declaration by Edward Butler, 25 June 2018; Response to question 3.2, Form F17 statutory declaration by Bruce Rochester, 9 July 2018
2 Response to question 2.5, Form F17 statutory declaration by Edward Butler, 12 July 2018; Response to question 2.5, Form F17 statutory declaration by Bruce Rochester, 9 July 2018
3 Responses to question 2.9 and question 4.3, Form F17 statutory declaration by Edward Butler, 12 July 2018
4 Response to question 2.4, Form F17 statutory declaration by Edward Butler, 25 June 2018; Response to question 2.4, Form F17 statutory declaration by Bruce Rochester, 9 July 2018
5 Response to question 2.5, Form F17 statutory declaration by Edward Butler, 25 June 2018; Response to question 2.5, Form F17 statutory declaration by Bruce Rochester, 9 July 2018
6 Audio recording of hearing on 31 July 2018
7 One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77
8 [2018] FCAFC 77
9 Derbarl Yerrigan Health Service Inc. [2018] FWCFB 2721 at [34]; citing Pennyco Pty Ltd t/a Zarraffas West Ipswich [2017] FWCFB 4852 at [34].
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