Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWCA 242

[2019] FWCA 242

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
(AG2018/7159)

TOP KNOT CARPENTRY SERVICES PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 24 JANUARY 2019

Application for approval of the Top Knot Carpentry Services Pty Ltd and CFMEU Union Collective Agreement 2018-2019

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied for approval of an enterprise agreement known as the Top Knot Carpentry Services Pty Ltd and CFMEU Union Collective Agreement 2018-2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The CFMMEU, 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the CFMMEU.

[3] Clause 2.1 of the Agreement states, “This Agreement remains in force until 1 January 2019. The Agreement will continue to apply beyond its expiration date until it is replaced by another agreement.” Consequently, an issue arises that if I approve the Agreement, then the Agreement will have already passed its nominal expiry date at the time that the Agreement comes into operation.

[4] Section 186 of the Act sets out matters that, if met, require that the Fair Work Commission (the Commission) must approve an agreement. Section 186(5) of the Act states:

Requirement for a nominal expiry date etc.

(5)  The FWC must be satisfied that:

(a)  the agreement specifies a date as its nominal expiry date; and

(b)  the date will not be more than 4 years after the day on which the FWC approves the agreement.

[5] The same issue was considered by Deputy President Gostencnik in Veolia Environmental Services (Australia) Pty Ltd. 1 In that matter, an agreement had been made on 8 April 2015, with a nominal expiry date of 23 May 2015. Due to an application to vary a predecessor agreement that was brought and then discontinued, the application to approve the agreement could not be considered until after the nominal expiry date had already passed. It was determined on 9 July 2015, with the Deputy President identifying that there could be two constructions of s.186(5)(b) of the Act.

[6] The Deputy President said the following about s.186(5)(b) of the Act: 2

“[12] It seems to me there are two possible constructions of this provision. The first is that an agreement must have a date as its nominal expiry date, being any date, provided that date is no more than four years after the day on which the Commission approves the agreement. This will allow a nominal expiry date to be a date before the Commission approves the agreement or before the agreement commences to operate.

[13] The second construction is that there are two elements to the nominal expiry date requirement. First, the date must be after the date on which the Commission approves the agreement. Secondly, that date cannot be more than four years after the date of approval. On this construction an agreement may have a nominal expiry date that is before the date on which the agreement commences to operate so long as it is after the agreement is approved. This is because an agreement does not commence to operate any earlier than 7 days after it is approved.

[14] The first construction appears to be consistent with ordinary grammatical meaning of the language in section 186 (5) of the Act, although it is odd that it would be permissible for an agreement to nominally expire, in effect, before the Commission has approved it and before it has commenced to operate. The second construction requires reading the word “after” in paragraph 186 (5)(b) as affecting both the outer limit of the nominal expiry date and the period within which that date may be set, namely between the date of approval and four years later. Moreover, the second construction raises the prospect that where parties agree that an agreement will have a short nominal life (as is the case here) that a delay in approval will result in that date having passed before approval is given.

[15] Ultimately, I have concluded that it is appropriate to apply the ordinary grammatical meaning with the result that the Agreement may specify a nominal expiry date, which is a date before the Agreement is approved and before it commences to operate. There does not seem to be anything in the provisions of Part 2-4 of the Act, in the objects of that Part or in the object of the Act, which would suggest a departure from the ordinary grammatical meaning. The Agreement once approved will continue to operate until it is replaced by another agreement or terminated in accordance with the provisions of Part 2-4.”

[7] I concur with the Deputy President’s above reasoning, allowing an agreement to be approved, even if the nominal expiry date of the agreement pre-dates the date of the approval. In my view, so long as the nominal expiry date is a date later than the day the agreement is made between an employer and employees, it matters not if the Commission approves an agreement on a date later than the nominal expiry date.
[8] Quite simply, the nominal expiry date of the Agreement the subject of this application, that being 1 January 2019, is not more than 4 years after the day the Commission approves the Agreement, that being 24 January 2019. It is a very odd scenario that the Agreement will operate, but will never have been an in-term agreement, and will only ever operate as a nominally expired agreement. I am satisfied, however, that s.186(5)(b) of the Act has been met.

[9] In light of the above and taking into consideration the material filed in the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 January 2019. The nominal expiry date of the Agreement is 1 January 2019.

COMMISSIONER

 1   [2015] FWCA 4606.

 2 Ibid. [12] – [15].

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