FG Cranes Pty Ltd

[2014] FWC 3241

[2014] FWC 3241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

FG Cranes Pty Ltd
(AG2013/10512)

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 22 MAY 2014

Application for approval of the FG Cranes Pty Ltd Enterprise Agreement 2013.

[1] On 17 December 2013 FG Cranes Pty Ltd (the Employer) lodged an application for approval of an agreement (the F16) titled the FG Cranes Pty Ltd Enterprise Agreement 2013 (the Agreement). Shortly after the application had been lodged the Construction, Forestry, Mining and Energy Union (the CFMEU) advised the Fair Work Commission (FWC) that it wished to be heard in relation to the application. The application was initially allocated to another Member of the FWC but later reallocated to me.

[2] On 12 February 2014 I conducted a conference regarding the application. The CFMEU identified concerns in respect of the meeting of the requirements of the Fair Work Act 2009 (the FW Act). The CFMEU therefore asserted that I could not be satisfied the requirements of s.186 and s.187 of the FW Act had been met. I requested that the CFMEU provide written submissions regarding their assertions which they did the following day. The Employer responded to the CFMEU’s submission (the Employer’s Response) on 19 February 2014. I decided that the matter should be formally heard as there were issues of fact involved.

Sequence of events

[3] The F16 lodged was signed by Mr Ferdinando Spera in his capacity as a Director of the Employer. The contact person was stated to be Mr Mark Hudston. The Employer is stated to be in the industry of “crane erection”. There are five bargaining representatives named in the F16, one electrician, one boilermaker, and three mechanical fitters.

[4] The Employer’s statutory declaration in support of the application (the F17) was lodged with the F16. The F17 was made by Mr Spera on 17 December 2013. A copy of an agreement accompanied the F16. The signatories to the agreement which accompanied the F16 were Mr Tavani (one of the employee representatives named in the application) and Mr Spera. The date stated as the date of signature of Mr Tavani was 5 December 2013. The date of signature of Mr Spera was 16 December 2013. Mr Hudston also signed the agreement which accompanied the F16 as a witness to the signing by Mr Tavani and dated 5 December 2013. He also signed as a witness to Mr Spera’s signing on 16 December 2013. The F17 states that the agreement was made on 5 December 2013.

[5] The Employer applied to the FWC for approval of the agreement within the required time. The Employer, after the F16, F17 were lodged, informed me that the agreement which accompanied the F16 was not the agreement made. A copy of the correct agreement and the one asserted to have been made was then provided. It is that agreement that is sought to approved in place of the agreement that initially accompanied the F16.

[6] Some of the issues that arise are:

(i) if the Employer and the employees made an agreement what is the agreement that they made?

(ii) whether the agreement initially lodged with the application was the agreement that was made by the Employer and the employees; and

(iii) if the agreement initially lodged was not the agreement made can the agreement actually made be regarded as the agreement made and that accompanied the F16.

[7] It is these issues that were the most contentious and were addressed in the evidence and submissions. There appeared to be no other matters where it was asserted the requirements for approval were not met.

Evidence

Mr Hudston

[8] Mr Hudston gave evidence. He stated that the original version of the agreement made was in the same terms as the GN Construction Agreement. The GN Construction Agreement is another agreement lodged with FWC that is still the subject of proceedings and consideration. Mr Hudston says that he had been mindful of some alleged deficiencies in the GN Construction Agreement and redrafted that agreement for the purpose of FG Cranes making an agreement. Mr Hudston’s evidence is thus that he drafted a proposed agreement for FG Cranes that was modelled on the GN Construction Agreement.

[9] Mr Hudston says that he forwarded the proposed agreement to Mr Decesare, the Operations Manager for the Employer on 2 October 2013. Mr Hudston says that he then met with the employees who would be covered by the proposed agreement on 19 November 2013 and discussed the contents of the proposed agreement with them. Mr Hudston says that one of the employees, Mr Ian Kelly (another employee named as an employee representative in the application lodged), signed the proposed agreement and gave it to him after the meeting. A copy of the proposed agreement signed by Mr Kelly was tendered and shows the signature date as 19 November 2013.

[10] Mr Hudston says that the F16 had attached to it “what purports to be the FG Cranes Agreement”. Some time after the application was lodged he became aware that the agreement lodged contained some of the same content as the GN Construction Agreement. Mr Hudston stated that the original version of the proposed agreement was altered to overcome some concerns about it and prior to the actual proposed agreement being provided to employees.

[11] Mr Hudston evidenced that the Group Accountant for the Employer, Mr David Modica, requested a clean copy of the agreement be provided to him in order that a clean copy could be attached to the application for approval. Mr Hudston says he therefore printed out what he thought was a true version of the agreement made but it was a copy of an original version of the proposed agreement being a copy of the GN Construction Agreement and not the agreement made.He then sentthe wrong agreement that he had printed outto Mr Modica. That wrong agreement then accompanied the F16 application that was lodged. Mr Hudston states that the agreement lodged with the application was thus not the agreement made.

Mr Tavani

[12] Mr Tavani gave evidence. Mr Tavani stated that he was a representative of employees. He stated that he and other employees met with Mr Hudston on 19 November 2013. He stated that the agreement that initially accompanied the application is a different version to the one he thought he had signed. He also stated that the agreement actually made was not the only agreement he thought he had signed but it is the one that the employees who were to be covered by the agreement were provided, voted upon, and genuinely agreed to.

Mr Decesare

[13] Mr Decesare gave evidence and provided a statement. Mr Decesare was at the time the Manager of FG Cranes Pty Ltd. He stated that he recalled Mr Hudston meeting with employees on 19 November 2013. He recalls that one of the employees, Mr Ian Kelly, signed a copy of the Agreement “then and there” and he thinks some other employees also signed a copy of the agreement on 19 November 2013 and that one employee, Mr Robert Hitie, signed the agreement on 25 November 2013.

[14] Mr Decesare recalled that the vote for the agreement took place in December although he was unsure of the exact date. It appears he was not present when the voting took place but he was present later. He stated that the agreement voted on was the agreement made as there was some of his handwriting on a copy of the agreement.

Mr Spera

[15] Mr Spera, a Director of the Employer gave evidence. Mr Spear signed the Application the F16 and also signed the the F17. He signed both those documents on 17 December 2013. The F17 Mr Spera signed states that the date the agreement that was voted on and made was 5 December 2013. The F17 also states that the employees were given a copy of the agreement on 27 November 2013 and were also notified of the time and place of voting on that day.

Other evidence

[16] Importantly there is no evidence from any employee that the agreement will cover. There is also no evidence from any employee that the agreement voted on was not genuinely agreed. Nor was there any explanation as to why employees involved in the making of an agreement were not called by the CFMEU, nor any request made that they be ordered to attend to give evidence.

Consideration

[17] It is not contentious that the Employer initiated bargaining and gave notice to each employee employed at the time of a right to be represented by a bargaining representative or that each of the employees appointed themselves as their own bargaining representative.

[18] There were only five employees employed at that time who would be covered by the proposed agreement each of whom was appointed as their own bargaining representative. The proposed agreement was explained to the employees to be covered by it by Mr Hudston on 19 November 2013. Mr Tavani says that each of the employees then signed the proposed agreement. A copy of a signed agreement (by Mr Kelly, one of the employees to be covered by the proposed agreement and a bargaining representative was tendered). It is clear enough that the proposed agreement was provided to each employee to be covered by the agreement and on 19 November 2013 some of the employees signed the proposed agreement on that day. Mr Kelly certainly signed the proposed agreement on that day.

[19] The sequence of events was confused by the date of 27 November 2013 being stated in the F17 as the date the proposed agreement was given to and explained to employees. It is apparent that the correct and actual date was 19 November 2013. Consequently, I find that the proposed agreement was provided on 19 November 2013 and explained to employees to be covered by the agreement on that day.

[20] Importantly, Mr Tavani stated that the agreement provided on 19 November 2013 was the agreement voted on and approved on 5 December 2013. Whilst there is some contradictions during Mr Tavani’s evidence and recollection of when the vote took place he finally asserted that the vote occurred on 5 December 2013. Mr Tavani’s evidence is clear that he asserts that the agreement that was made was that agreement that was provided on or before 19 November 2013.

[21] There is no evidence that another agreement was provided on or before 5 December 2013 to employees to be covered by the proposed agreement when the vote occurred. What there is evidence of is that Mr Tavani was provided with what he thought was a copy of the proposed agreement on 5 December 2013 and he signed it. This is consistent with the copy of the agreement initially lodged with the F16 and signed by Mr Tavani and witnessed by Mr Hudston which was dated 5 December 2013. Exactly when Mr Tavani was provided the copy of the agreement that he signed on 5 December 2013 is unclear.

[22] As stated above, there is no evidence that after 19 November 2013 another copy of the agreement was given to all employees to be covered by the agreement. There is evidence of the agreement which accompanied the F16 being signed, and that Mr Tavani and Mr Spera thought that was the agreement that was made but there is nothing to indicate that the agreement signed on 5 December 2013 was the agreement that was voted on and hence made. To the contrary the evidence supports a finding that the agreement that is now sought to be the agreement that accompanies the F16 is the agreement that was made.

[23] The situation is also confused by some of the evidence. An unexplained issue arises from the fact that the agreement lodged with the application was signed by Mr Tavani on 5 December 2013 and by Mr Spera on 17 December 2013. There was no evidence of where Mr Tavani signed, or at what time, or at what stage of the process he signed it. Furthermore Mr Hudston’s date of witnessing the signature of Mr Tavani was 5 December 2013. Mr Spera signed the agreement on 17 December 2013 and it was witnessed by Mr Hudston on that day.

[24] It also went un-evidenced as to where and when Mr Hudston printed out the agreement for Mr Modica and how the copy was provided to Mr Modica. It also does not explain why Mr Tavani’s signature was dated and witnessed as 5 December 2013. There must have been some delay between the making of the agreement, the signing of it by Mr Tavani, and the provision of a fresh copy of the agreement to Mr Modica. Presumably this all occurred on 5 December 2013, but a more fulsome explanation should have been given.

[25] It is not in dispute that a vote took place on 5 December 2013 and the evidence of Mr Hudston, Mr Tavani and Mr Decesare supports the contention that the agreement proposed on 19 November 2013 was the agreement made on 5 December 2013. The confusion has arisen after the agreement was made with another copy of what was thought to have been the agreement made being produced and signed. I am satisfied and find that the agreement voted on and made was the proposed agreement provided on or before 19 November 2013. The evidence of Mr Tavani and Mr Hudston are consistent with a finding to this effect and I am satisfied that is what did occur. I am therefore satisfied that the agreement made on 5 December 2013 was genuinely agreed to. The agreement made is the agreement now provided and the agreement that is asserted to be that which accompanies the application for approval.

Is there an application accompanied by the Agreement

[26] The agreement I am considering for approval must meet the requirements of s.185(2) of the FW Act. The FW Act at s.185(2) requires that the application must be accompanied by a signed copy of the agreement. At s.185(5) it provides that the regulations may prescribe requirements relating to the signing of enterprise agreements. The Regulations provide at regulation 206A that:

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

...

[27] I therefore must be satisfied that the requirements of regulation 206A have been met. Regulation 206A requires some explanation in the context of this application. It is notable that only one employee bargaining representative is obliged to have signed the agreement made. Any one of the five bargaining representatives could have signed the agreement made. Thus any of the agreements signed by a bargaining representative that was tendered could have been lodged as the agreement made, providing of course that the Employer had also signed it.

[28] There is no requirement that the agreement made must be signed by the employer or the bargaining representative at any particular stage. Indeed there may be entirely plausible and practical reasons why an agreement would be signed by bargaining representatives before it is voted on. For example a bargaining representative or representatives might want to sign a proposed agreement before it is provided to employees to ensure that employees have no doubt that what they are asked to consider and vote upon has the support of their bargaining representative.

[29] I find that the Employer proposed an agreement, and employees voted and genuinely agreed to that proposed agreement on 5 December 2013. The agreement initially lodged with the applicationas the agreement was not the agreement made by the Employer and the employees. However, the agreement that was made on 5 December 2013 that now accompanies the F16 has not been signed. The agreement being requested to be the agreement that accompanies the F16 was attached to a letter sent to my Chambers on 10 February 2014. It was not signed.

[30] The agreements, or purported agreements, that have been lodged or submitted are as follows:

● the agreement initially lodged with the FWC (Exhibit MH3) signed Mr Tavani and Mr Spera, however, I have found above that this is not the agreement made;
● an agreement that I have found above is the agreement made (Exhibit MH1) but it is unsigned. Indeed the name on that agreement as the authorised representative of FG Cranes Pty Ltd is not a person identified in the proceedings;
● an agreement signed by Mr Kelly as a bargaining representative, but not signed by the employer (Exhibit MH2);
● a copy of the agreement that was made with Mr Spera’s handwriting on it (Exhibit MH4) but no signatures on it at all;
● a copy of an agreement that Mr Tavani states is the agreement that was made (Exhibit PT2), but has no signatories; and
● a copy of an agreement that a bargaining representative, Mr Hitie, signed on 25 November (Exhibit LVD2), but is not signed by the Employer.

[31] In all, I thus have six copies of agreements, some are copies of the agreement that was not made, some are copies of the agreement that was made but is unsigned, and some are copies of the agreement that was made but is only signed by a bargaining representative. I still do not have a copy of the agreement made that satisfies the requirements of s.185(2) by being signed by a person authorised by the Employer to sign and by a bargaining representative.

[32] An application has not been properly made unless and until a true copy of the agreement made accompanies that application. The agreement that accompanies the application must be signed by the Employer covered by the agreement and at least one bargaining representative.

[33] I am therefore not satisfied that the requirements of regulation 206A have been met and as a consequence s.185(2) has not been satisfied. Thus, I do not have an application that meets the requirements for me to be able to approve the Agreement. I therefore do not approve the Agreement.

DEPUTY PRESIDENT

Appearances:

A Drake-Brockman of DLA Piper for the Applicant.

J Nicholas of Construction, Forestry, Mining and Energy Union for the Intervener.

Hearing details:

2014.

Perth:

March 13, 25.

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