CPB Contractors Pty Ltd

[2024] FWCA 3573

[2024] FWCA 3573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

CPB Contractors Pty Ltd

(AG2024/3182)

CPB CONTRACTORS PTY LTD CROSS RIVER RAIL - RAIL INTEGRATION AND SYSTEMS (RIS) ENTERPRISE AGREEMENT 2024-2028

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 OCTOBER 2024

Application for approval of the CPB Contractors Pty Ltd Cross River Rail - Rail Integration and Systems (RIS) Enterprise Agreement 2024-2028

1. An application has been made for approval of an enterprise agreement known as the CPB Contractors Pty Ltd Cross River Rail - Rail Integration and Systems (RIS) Enterprise Agreement 2024-2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CPB Contractors Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The copy of the Agreement filed with the application was signed by Mr Michael McCann (the Alliance Manager) on behalf of the Applicant and by Mr Matthew Papworth on behalf of employees. Mr Papworth who is the HR Manager for the Applicant also signed the Form F17B on behalf of the Applicant. This raises a concern as to whether the Agreement has been signed in accordance with s 185(2)(a) of the Act and in accordance with 2.06A(2)(a)(ii) of the Fair Work Regulations 2009 (the Regulations) and specifically whether Mr Papworth in signing the Agreement was a ‘representative of the employees covered by the agreement’ as required. The Applicant filed material going to the circumstances of the project that the Agreement would cover if approved, and that employees were as a result of those circumstances reluctant to sign the Agreement, explaining why Mr Papworth signed the Agreement on their behalf.

1. I am satisfied that the signature requirements of the Act and Regulations are not met by reason of Mr Papworth having signed the Agreement on behalf of employees and as such the application has not been validly made. However, in the circumstances of this case, I have determined pursuant to s 586(b) of the Act to exercise my discretion to ‘waive the irregularity in the form and manner’ in which the application was made. Such an approach is consistent with the majority decision in the Full Bench authority of CFMMEU v Griffiths Cranes Pty Ltd (2019 [FWCFB] 1717). Having exercised that discretion, the application is deemed to have been validly made.  

1. The title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(5). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. I note that clause 7.2(e)(ii) is inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 2.7 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

1. The Australian Workers’ Union and the Construction, Forestry and Maritime Employees Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 October 2024. The nominal expiry date of the Agreement is 10 October 2024.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

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