Construction, Forestry, Mining and Energy Union FFPD National Branch the Forestry, Furnishing, Building Products and Manufacturing Division v Wunda Projects Australia Pty Ltd

[2017] FWC 1897

[2017] FWC 1897

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union - FFPD National Branch - The Forestry, Furnishing, Building Products and Manufacturing Division
v
Wunda Projects Australia Pty Ltd
(C2017/1523)

COMMISSIONER PLATT ADELAIDE, 3 APRIL 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

1. The Application

[1] A dispute under s.739 of the Fair Work Act 2009 was lodged on 22 March 2017 concerning employee entitlements under the Wunda Projects Australia Pty Ltd Enterprise Agreement 2014 (the Agreement).

[2] The matter was the subject of a conference on 31 March 2017. Ms Dooley represented the CFMEU and Mr Smith (of counsel) together with Mr Bissett (Project Manager) represented Wunda Projects Australia Pty Ltd (Wunda).

[3] The background to this dispute is as follows.

[4] On 16 November 2016, a s.739 application (C2016/6771) was lodged with the Fair Work Commission (the Commission) in relation to a dispute about redundancy, payment of wages, superannuation and living away from home allowance. On 25 November 2016, Senior Deputy President O’Callaghan issued a statement concerning that matter. He noted that each matter went to questions of compliance with the Agreement rather than issues of dispute about the provisions. Notwithstanding this, the parties agreed on a number of steps which were directed towards resolving the matters. In particular, in relation to the superannuation payments, the parties agreed that Wunda would provide to the CFMEU by 28 November 2016 a list of all employees, showing the status of their superannuation entitlements.

[5] On 28 November 2016, another s.739 application (C2016/6990) was lodged with the Commission in relation to a dispute over payment of wages.

[6] On 7 December 2016, Senior Deputy President O’Callaghan issued a further statement, for both matters C2016/6771 and C2016/6990, and again noted that there were issues with the jurisdiction of the Commission, however, the parties had reached agreement with respect to payment issues.

[7] On 19 December 2016, Mr Smith from Norman Waterhouse Lawyers on behalf of Wunda, sent an email to Ms Dooley of the CFMEU informing that the superannuation payments would be paid progressively and by 31 March 2017. A further email was sent from Mr Smith on 20 December 2016, informing that he was instructed to advise that superannuation payments would be paid in full on or before 31 March 2017.

[8] On 27 February 2017, Wunda emailed the CFMEU and advised that only 25% of employees’ outstanding superannuation would be paid by 31 March 2017 with the total amounts outstanding being paid by 22 June 2017.

2. The Issue in Dispute

[9] The CFMEU have contended that Wunda has breached undertakings provided on 19 and 20 December 2016 and have not to date paid the superannuation entitlements.

[10] On 31 March 2017, Mr Smith conceded that at that point no payments had been made and that he had instructed his client as to its obligation to pay the amounts. Mr Bissett advised that the payment had not been made due to the illness of an employee with payroll responsibilities, but also mentioned he would need to seek approval from the Directors.

3. Recommendation

[11] As was the case in the other matters before Senior Deputy President O’Callaghan, I note that there still remains an issue of jurisdiction with the current application lodged by the CFMEU, however, I have agreed to issue the following recommendation.

[12] Having regard to the material before me, it appears there is no dispute as to the obligation of Wunda to pay the employees’ the entitlements in question. It appears that Wunda has failed to honour representations made concerning the payment. There is no submission before me that Wunda is not able to meet its debts as they fall due, in which case there is no reason why the employee entitlements should not be paid immediately. A failure to make payment may result in litigation and the potential impositions of penalties on Wunda, its Directors and Officers.

[13] The Commission hereby recommends that, within 7 days from the date of this recommendation, Wunda Projects Australia Pty Ltd meet its legal obligation by paying in full the superannuation payments that it undertook to pay by 31 March 2017.

COMMISSIONER

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