CPB Contractors Pty Limited

[2018] FWC 1796

[2018] FWC 1796

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

CPB Contractors Pty Limited
(AG2017/5368)

COMMISSIONER RIORDAN SYDNEY, 29 MARCH 2018

Application for approval of the CPB NSW Civil Works Enterprise Agreement 2017 – 2021. Right to be heard.

[1] CPB Contractors Pty Ltd (CPB) have applied to the Fair Work Commission (the Commission) to approve the CPB Contractors NSW Civil Works Enterprise Agreement 2017-2021 (the Agreement).

[2] The Agreement was negotiated directly between CPB and its employees. No employee sought the assistance of a bargaining agent.

[3] The Australian Workers’ Union, NSW Branch, (AWU) has members employed by CPB and “wants to be heard” by the Commission in relation to the approval process. CPB does not oppose the AWU being heard on the basis that they have a history of involvement with the Company and have members who are employed by CPB.

[4] The Construction Forestry Mining and Energy Union (CFMEU) claimed that they were a default bargaining agent on the basis that they also have members employed by CPB. The CFMEU now accept that they had no members employed by CPB during the negotiation or approval of the Agreement by the CPB employees.

[5] The CFMEU continues to press its request to be heard on the basis that it has concerns that the Agreement was not “genuinely agreed” based on the Agreement’s coverage clause. The CFMEU has also raised a number of BOOT and NES issues that the Union argues should be highlighted before the Commission. Finally, the CFMEU submitted that as an experienced participant in the industry, the CFMEU can assist the Commission by being a “contradictor” to the submissions of CPB.

[6] I note that the AWU, supports the CFMEU’s position in relation to the CFMEU’s right to be heard. CPB opposes the CFMEU’s request.

Consideration

[7] It is not in dispute that the Commission has the capacity to determine whether to hear from any party or person. Section 590 of the Fair Work Act, 2009 (the Act) states:

Section 590

Powers of FWA to inform itself

(1)  FWA may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2)  Without limiting subsection (1), FWA may inform itself in the following ways:

(a)  by requiring a person to attend before FWA;

(b)  by inviting, subject to any terms and conditions determined by FWA, oral or written submissions;

(c)  by requiring a person to provide copies of documents or records, or to provide any other information to FWA;

(d)  by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e)  by requiring an FWA Member, a Full Bench or the Minimum Wage Panel to prepare a report;

(f)  by conducting inquiries;

(g)  by undertaking or commissioning research;

(h)  by conducting a conference (see section 592);

(i)  by holding a hearing (see section 593).

[8] I have taken the Commission’s discretionary power into account.

[9] In CFMEU v Collinsville Coal Operations Pty Ltd 1(Collinsville) a Full Bench of the Commission held:

“[72] Whether an employee organisation which is not a bargaining representative has a right to be heard in relation to an application for the approval of an agreement will depend on the circumstances in each case. In this case, when the rights, interests or expectations asserted by the CFMEU are understood in the legislative context, it is clear that the CFMEU has not established any right, interest or legitimate expectation that would be adversely affected by the decision to approve the Agreement which would give it a right to be heard.”

[10] I have taken into account that the AWU is a principal union in the NSW civil construction industry, who can provide the Commission with any assistance which may be required in relation to the intricacies of the industry.

[11] I have taken into account that the AWU opposes the approval of the Agreement. As such, the AWU will act as the natural “contradictor” to CPB.

Conclusion

[12] I can see no valid reason to exercise my discretion and grant the request from the CFMEU to be heard in relation to the approval of the CPB Agreement. The CFMEU was not nominated as a bargaining agent and had no members employed by CPB at the time that the Agreement was negotiated or endorsed. I am of the view that the issues that the CFMEU wishes to raise as to why the Commission should not approve the Agreement can be argued by the AWU.

[13] After taking into account the obiter in Collinsville, the request by the CFMEU to be heard is denied.

[14] I so Order.

COMMISSIONER

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 1   [2014] FWCFB 7940