Freyssinet Australia Pty Ltd

[2021] FWCA 4677

[2021] FWCA 4677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Freyssinet Australia Pty Ltd
(AG2021/5727)

FREYSSINET AUSTRALIA PTY LTD SYDNEY REMEDIAL ENTERPRISE AGREEMENT 2021-2025

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 2 AUGUST 2021

Application for approval of the Freyssinet Australia Pty Ltd Sydney Remedial Enterprise Agreement 2021 - 2025.

[1] An application for the approval of an enterprise agreement known as the Freyssinet Australia Pty Ltd Sydney Remedial Enterprise Agreement 2021 – 2025 (the Agreement), was made by Freyssinet Australia Pty Ltd (the Applicant) pursuant to s 185 of the Fair Work Act 2009 (the Act).

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) have made written submissions requesting to be heard regarding two discrete issues in relation to the approval of the Agreement pursuant to s.590 of the Act. The Applicant opposes the CFMMEU’s request to be heard.

[3] Both the Applicant and the CFMMEU filed written submissions, and the matter was heard on 22 July 2021. At the conclusion of the hearing, directions were issued for the filing of possible further submissions by the CFMMEU by close of business 23 July 2021, and the Applicant by close of business 26 July 2021.

[4] There were five bargaining representatives identified in the Application. The views of these bargaining representatives were sought, and no submissions were made to the Fair Work Commission.

The CFMMEU Application to be Heard

[5] The following facts are relevant to the consideration of the CFMMEU’s application to be heard:

(a) The CFMMEU was not a bargaining representative in the negotiation, or the making, of the Agreement;

(b) While the CFMMEU asserted in the Hearing that it had reason to believe that it had members that may be covered by the Agreement, it brought no evidence of any members employed by the Applicant, or any involvement in the Applicant’s enterprise. As such, the CFMMEU has no right, interest or legitimate expectation in respect of the Agreement, or its approval;

(c) 60 of the 63 employees that cast votes in relation to the Agreement voted to approve the Agreement;

(d) The Agreement does not alter or interfere with an employee’s right to choose to become a member of the CFMMEU, and the approval of the Agreement will not affect the CFMMEU’s rights to participate in bargaining for future enterprise agreements with the Applicant, or the CFMMEU’s relevant rights to represent employees under the Agreement; and

(e) The two discrete issues raised by the CFMMEU will need to be addressed by the Commission as part of the approval process in any event, and the Commission can determine whether to approve the Agreement absent a contender or third-party intervener. 1

[6] In CFMEU v Collinsville Coal Operations Pty Limited, 2 the Full Bench of the Commission stated the following in respect of s.590 of the Act (in the context of the Commission’s enterprise agreement role):

“[65] In our view the right, interest or legitimate expectation that is said to be affected by application of the kind before the Senior Deputy President must be identified and understood against the framework of enterprise bargaining and agreement making established by the FW Act. It is not enough, without more, to point to the status of the CFMEU as an employee organisation with a history of representation at the workplace or in the industry. Moreover, this is not a case where some of the members of the CFMEU voted against the approval of the Agreement or did not vote at all. All of the employees covered by the Agreement voted, and all of those employees (including Employee 2) voted in favour of approving the Agreement

…

[75] We would make the observation however, that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person of organisation.”

[7] The two issues the CFMMEU seeks to address go to the satisfaction, or otherwise, of the requirements of sub sections (2) and (5) of section 180 of the Act. Those are both issues I need to address as part of the agreement approval process. Having had those two discrete issues identified by the CFMMEU, I would be assisted by the CFMMEU’s submissions in resolving those issues. I therefore grant leave for the CFMMEU to intervene in the approval of the Agreement.

Issue 1 – Compliance With s.180(2)

[8] The Commission must be satisfied that in accordance with s.186(2)(a) of the Act that an agreement that is not a Greenfields agreement has been genuinely agreed by the employees covered by the Agreement. Relevantly, pursuant to s.188(1)(a) the Commission will be satisfied an agreement has been genuinely agreed if a number of provisions are satisfied, in particular that the pre-approval steps in s.180(2) and 180(5) of the Act.

[9] Section 180(2) provides:

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement;

or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

[10] The CFMMEU submits that the Applicant did not take all reasonable steps because of the manner in which it sought to provide the relevant Award to the employees. Clause 3.4.2 of the Agreement provides that the Building and Construction General on-site Award 2010 (the Award) is expressly incorporated into the Agreement. The effect of this is that the Award is incorporated material for the purposes of s 180(2) of the Act.

[11] The predecessor agreement to the Agreement, the Freyssinet Australia Pty Ltd Remedial Enterprise Agreement (Sydney) 2017- 2021 (the Prior Agreement) provides at clause 4 that:

“4. PARENT AWARD

4.1 Reference in this Agreement to the 'Award' shall mean the Building and Construction General On-site Award 2010.

4.2 Where this Agreement is silent the terms of the Award as at the time of approval by the employees shall apply.

4.3 In the event of any inconsistency between the Award and an express provision of this Agreement, the te1ms of this Agreement shall prevail.”

[12] The CFMMEU submitted that the way in which the Applicant provided access to the Award was problematic because, while they provided employees with hyperlinks to the Award, those links were not electronic links, but rather links typed on a sheet of paper that employees had to then type every single character into their relevant device to access the Award. That process, the CFMMEU submitted, did not allow direct access to the Award, unlike electronic links that allow the user to simply click on the link. In those circumstances it was difficult to establish whether employees were actually given or had access to the Award.

[13] The position advanced in the CFMMEU submission deals with the hypothetical, rather than the actual state of affairs. It disregards the quite detailed explanation of the steps taken to inform employees that was provided in the unchallenged declaration contained in the Form F17 executed by Mr Bashir Moustafa. In particular Mr Moustafa deposed that

“I also had them confirm that they were successfully able to access a copy of the onsite Modern Award 2020 and the Building code 2016 using the printed electronic links provided. All Employees verbally confirmed that they used the links provided and had been able to access both documents.”

[14] I am satisfied that the Applicant took all reasonable steps to ensure that the employees were given access to material incorporated by reference in the Agreement, and the Award in particular.

Issue 2 – Compliance With s.180(5)

[15] Section 180(5) of the Act requires provides:

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[16] In their submission, the CFMMEU submitted that while the Prior Agreement incorporated the Award as it existed at the fixed point of time of the approval of the Prior Agreement, the Agreement incorporated the Award as amended from time to time. The CFMMEU submitted:

“The failing of the employer to mention how the Award will be incorporated into the proposed agreement and how it will affect them, raises concerns as to whether the employees were fully informed prior to their decision to vote on the agreement. Particularly in circumstances where it is the first time that the Award is to be incorporated into an agreement that underpins the employees employment.”

[17] Contrary to the CFMMEU’s submission, the Applicant did directly address how the Award was incorporated. After providing numerous detailed comparisons between the Agreement, the Prior Agreement and the Award, as they related to specific clauses of the Agreement, Mr Moustafa deposed as follows regarding Clause 3.4.3 of the Agreement:

“I explained to Employees that where the proposed Agreement is silent on a provision in the Award, the effect of this means that the Award provision will apply and the provisions of the National Employment Standards are also applied to the Agreement.”

[18] In the hearing of this matter it became apparent that the criticism of the CFMMEU related to the alleged failure to explain the different methods of award incorporation utilised in the Prior Agreement as opposed to the Agreement, being the Award as it existed at the time of the approval of the Prior Agreement against the Award as it may vary from time to time during the operation of the Agreement.

[19] I consider the above contention of the CFMMEU seeks to impose an obligation in excess of the contained in s.180(5). The Applicant clearly explained the award incorporation term, both specifically, and as it applied to numerous clauses of the Agreement. By doing so it satisfied s.180(5).

[20] Enquiry was made of the CFMMEU as to whether there was any practical, as opposed to hypothetical, effect occasioned by the change in manner of incorporation of the Award, and the CFMMEU were directed to provide submissions that identified such actual practical effects. After reviewing their position, the CFMMEU decided to not to provide any further submissions.

Conclusion

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

[22] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[23] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this approval. The nominal expiry date of the Agreement is 2 August 2025.

DEPUTY PRESIDENT

 1   Macmahon Contractors Pty Ltd [2018] FWC 869.

 2 (2014) 246 IR 21; [2014] FWCFB 7940.

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