Construction, Forestry, Mining and Energy Union v Veolia Environmental Services (Australia) Pty Ltd

[2010] FWA 9211

[2010] FWA 9211

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.238 - Application for a scope order

Construction, Forestry, Mining and Energy Union
v
Veolia Environmental Services (Australia) Pty Ltd
(B2010/3593)

SENIOR DEPUTY PRESIDENT CARTWRIGHT SYDNEY, 30 NOVEMBER 2010

Application for a scope order.

[1] The Construction, Forestry, Mining and Energy Union [CFMEU] applied for a scope order under s.238 of the Fair Work Act 2009 [the Act] for a proposed enterprise agreement with Veolia Environmental Services (Australia) Pty Ltd [Veolia] to cover refractory workers performing refractory installation, maintenance and related work in Queensland, New South Wales, Victoria, South Australia, the Northern Territory and Tasmania. This was explained as an application for a national scope, but excluding site specific arrangements at the Tomago smelter in NSW and the state of Western Australia, both of which are covered by existing agreements with nominal duration until 31 December 2011.

[2] Veolia notifed the CFMEU on 22 July 2010 that it had “decided to withdraw from all discussions with the CFMEU regarding a national agreement to cover Refractories work.”

[3] Leaving aside Western Australia and the Tomago site, Veolia and the CFMEU have an existing agreement covering refractories employees in Victoria (except for the La Trobe Valley) [“Veolia Refractories [Victoria] and CFMEU Agreement 2007-2010”]with a nominal expiry date of 30 September 2010 and another covering refractory employees in the States of South Australia and the Northern Territory, Tasmania and Queensland [“Veolia Environmental Services [Refractories] Agreement 2007”] with a nominal expiry date of 31 December 2010.

[4] Veolia has commenced bargaining for an agreement covering refractory employees in Victoria and it is apparent that the CFMEU is a bargaining representative in relation to the proposed agreement.

[5] On 14 October 2010 Veolia initiated bargaining in South Australia for a new enterprise agreement and issued notices of employee representation rights as required by the Act. In the following days, Veolia received 11 notices from relevant employees, with the effect of appointing 8 individual employees as bargaining representatives for the proposed agreement. None of these appointments has since been revoked. Mr Winn, for Veolia, gave evidence that a ballot was conducted on 12 November 2010 to approve the South Australian enterprise agreement and the Company submits that the voters unanimously approved it.

[6] Veolia also initiated bargaining for an agreement in Tasmania on 14 October 2010 and issued the required notices of employee representational rights that day. It subsequently received 19 notices from employees, with the effect of appointing 4 individual employees as bargaining representatives for the proposed agreement. Two of those appointments have since been revoked, but there is no change to the identity or number of individual employees appointed as bargaining representatives.

[7] There has been no initiative to commence bargaining for an agreement covering refractory employees in Queensland. While Veolia has proposed to the CFMEU negotiation of a greenfields agreement for NSW, apart from the Tomago site, there was no evidence before me on any further development relevant to Veolia’s refractory employees in NSW.

[8] On 26 October 2010 the CFMEU sent Veolia a letter headed “Re: Bargaining for the Veolia Pty Ltd Refractory Agreement - Notice of Concerns Regarding Scope.” It set out a number of points and sought a response within 48 hours. Veolia replied on 28 October and further correspondence ensued, with Veolia indicating it “could not see any good reason not to continue the bargaining processes currently underway.”

[9] The CFMEU lodged its application to Fair Work Australia for a scope order on 9 November 2010 and notified Veolia it was a bargaining representative for members from Tasmania.

[10] In the period between 26 October and 9 November, the CFMEU sent no written notice of its concerns about the efficiency or fairness of the bargaining processes or about the appropriateness of employees to be covered by any proposed agreement to any other bargaining representative.

[11] Consequently, when I listed for hearing the CFMEU’s application for a scope order under s.238 of the Act, Veolia objected that the Union had not met the requirements of s.238(3) for applying for a scope order. Argument on that point was heard on 29 November 2010.

[12] S.238 relevantly provides:

“(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order) under this section if:

(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and

(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation

(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative must have given notice of concerns

(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(c) considers that the relevant bargaining representatives have not responded appropriately.”

[13] These subsections set out the requirements to be satisfied for a scope order application to be made. Veolia concedes that they have been met, but with one exception - failure to send written notices required by s.238 to other appointed bargaining representatives whom it says are “relevant bargaining representatives” for the purposes of s.238(3).

[14] The uncontested evidence is that employees, whom Veolia proposes be covered by separate agreements in South Australia and Tasmania, have appointed bargaining representatives and that the CFMEU has not sent them written notices of the Union’s concerns before making the application under s.238. I am satisfied on the evidence that such bargaining representatives are “relevant” within the meaning of s.238(3), because their responses on issues about negotiating for separate state agreements or a different scope would be significant for Veolia and for the CFMEU, particularly in South Australia, where it would seem that by 9 November any negotiations were in the final stages. I note in passing that their views would also be of significance in any considerations under ss.238(4) and 238(4A), though I have not considered that as a factor in weighing the requirements of s.238(3).

[15] The CFMEU rightly points to its difficulty in knowing of the appointment and identity of other appointed bargaining representatives. However, there is insufficient evidence of any attempts to establish whether other bargaining representatives had been appointed before lodging the application, in circumstances where the obligation to give written notice of its concerns to relevant bargaining representatives rests solely with the CFMEU. Indeed, Mr Winn’s letter to the CFMEU on 3 November referred to Veolia’s approach being “supported by a number of bargaining representatives outside of the CFMEU.” That is, it is apparent that before making the application, the CFMEU was on notice that there were other bargaining representatives to be considered.

[16] Without labouring the point further, it seems to me that the better course in this case is for the CFMEU to remedy the current deficiency in its application which, given my findings above, I am obliged to dismiss.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S Maxwell of the Construction, Forestry, Mining and Energy Union

Mr Y Shariff of counsel for Veolia Environmental Services (Australia) Pty Ltd

Hearing details:

2010

Sydney

November, 22 & 29

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