Geocon Constructors (ACT) Pty Ltd T/A Geocon
[2019] FWC 2775
•24 APRIL 2019
| [2019] FWC 2775 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Geocon Constructors (ACT) Pty Ltd T/A Geocon
(AG2018/3411)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 24 APRIL 2019 |
Application for approval of the Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2018-2022 – request from the Construction, Forestry, Maritime, Mining and Energy Union to be heard in respect of the application – request opposed by the Applicant – request granted.
[1] An application was made on 25 July 2018 for approval of an enterprise agreement known as the Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2018-2022 (the Agreement). The application was made by Geocon Constructors (ACT) Pty Ltd T/A Geocon (Geocon) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
[2] On 27 July 2018 the Fair Work Commission (the Commission) wrote to Geocon regarding the notice of employee representational rights provided with the application. The correspondence stated inter alia that:
“Upon preliminary review of the application, it appears that no content has been entered into any of the blank fields in the first paragraph of the notice of employee representational rights. As a result, it appears that the notice does not contain content that is prescribed by Schedule 2.1 of the Fair Work Regulations.
…
It would appear that, in line with the above mentioned decisions, the notice in this case does not comply with the Act as it departs from the form prescribed in Schedule 2.1 of the Regulations, and is therefore invalid. It seems to follow that as no valid notice of employee representational rights was given to employees, the Agreement cannot be approved.
If you would like to be heard in relation to the above, the matter may be listed for a hearing.
Alternatively, if you wish to withdraw the application, please file a notice of discontinuance.
The Commission requests that this correspondence be addressed as soon as possible but not later than 29 July 2018 by providing a response to [email protected].”
[3] Later that day, Ms Ashlee Berry, Legal and Compliance Director with the Master Builders Association of the ACT (MBA), replied in the following terms to the abovementioned correspondence from the Commission:
“Thank you for your letter.
On reviewing the documents I submitted for filing, I have realised that I attached the incorrect Notice (our template rather than the specific notice Geocon provided to employees).
Please find attached for filing the notice that was submitted.
I have copied Mr Tristan Ferris (Legal Counsel at Geocon) in to this correspondence and he will see that this email and the correct document is circulated to the necessary people as required.
If you have any queries or require anything further please contact me on the details below.”
[4] Also on 27 July 2018 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) sent an email to the Commission stating that it wished to be heard in respect of the application and requesting a copy of the application and associated documentation filed by Geocon. The requested material was forwarded to the CFMMEU by the Commission’s Member Support Research Team on 6 August 2018, though the material provided to the CFMMEU did not for some reason include the abovementioned email of 27 July 2018 from Ms Berry and attached notice of employee representational rights.
[5] On 31 August 2018 the CFMMEU forwarded to the Commission submissions as to why it should be heard in respect of the application. Key aspects of the CFMMEU’s submissions included that:
• it was a bargaining representative for the proposed Agreement in so far as it had members covered by the proposed Agreement;
• in the alternative the Commission should use the discretion available to it under s.590(1) of the Act to hear from it;
• the Agreement undermined the safety net provided by the Building and Construction General On-site Award 20101 (the Award);
• it opposed approval of the Agreement on the basis that the Commission could not be satisfied that:
→ all workers were provided with a copy of the text of the Agreement and any other material incorporated by reference into the Agreement,
→ the effect of the terms of the Agreement had been explained to the workers when regard was to the responses provided in the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) filed with the application, and
→ the proposed Agreement had been genuinely agreed to by the employees covered by the Agreement as there were other reasonable grounds for believing that the Agreement had not been genuinely agreed to by employees; and
• as the employees covered by the proposed Agreement were presently covered by the Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2015-20192 (the 2015 Agreement) which has a nominal expiry date of 13 January 2020 there was a genuine question as to what stake the employees who voted on the Agreement had in its approval or operation, particularly as a significant proportion of those employed with Geocon at the present time will not be employed by it at the earliest possible time that the Agreement will apply.
[6] On 15 January 2019 the Commission’s Agreements Team wrote to Ms Berry in the following terms:
“I write in relation to the abovementioned application which has been allocated to Deputy President Kovacic for consideration. On review of the application, the Commission notes the preliminary issues outlined below. You received correspondence on the 10 January 2019 regarding the details for a Mention and/or directions hearing. You may wish to consider the below issues in relation to the application which are likely to be discussed at the hearing.
CFMMEU Submissions
Please find attached submissions from the CFMMEU dated 31 August 2018. Also attached is an email train where the CFMMEU were provided with redacted versions of the Form F16, Form F17, Enterprise Agreement and Notice of Employee Representational Rights provided by the Applicant at lodgement. This was as per their request and in accordance with Commission procedures in relation to application documentation.
We note that the CFMMEU has requested to be heard in this matter pursuant to section 590 of the Fair Work Act.
Pre-approval Requirements
• The information provided at question 2.6 and 2.7 of the F17 may not contain enough details to satisfy the requirements outlined in the OneKey decision. Further information may be required detailing the steps taken to explain the terms of the agreement to the employees covered by the Agreement (Q2.6), as well as the effect of the Agreement on them (such as how the application of the relevant awards is varied), and copy of any materials given to employees to explain the terms and the effect of the terms of the agreement, having regard to the decision in One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77.
• Q2.4 and 2.5 of the F17 do not state how/ the method used to give the Agreement and the voting details to employees.
National Employment Standards (NES)
• Clause 33 of the Agreement states that the employer can direct employees to take annual leave as long as they have at least 20 days remaining. This is less beneficial than the Award provision which requires 6 weeks to be remaining. The provision may also generally be inconsistent with the NES provisions on annual leave.
• The Agreement is silent on the definition of a casual employee and further excludes casuals from annual & personal leave at clause 17. As determined in the decision of WorkPac Pty Ltd v Skene [2018] FCAFC 131, employees engaged ‘in continuous employment rather than those in irregular, intermittent, occasional or discontinuous employment’ (see WorkPac Pty Ltd v Skene [2018] FCAFC 131 at paragraph 164) are not “casual employees” as within the meaning of the Act, and thus may be entitled to annual leave.
• Clause 33.2 of the Agreement expresses the entitlement to annual leave in days. The expression of annual leave in days appears to be inconsistent with the Act at s.87 which expresses the entitlement to annual leave in ‘weeks’ only. Clause 33.2 may result in a lesser entitlement to annual leave than as provided for under the NES.
Better Off Overall Test (“BOOT”)
• The Agreement is silent on all shift penalties except night shift which is paid at 200% and is defined consistently with the Award as a shift which commences between the hours of 3pm and 11pm. It is unclear as to whether this is the only shiftwork that can be performed under the agreement for the purposes of assessing the BOOT.
• The Agreement is silent on most allowances found in the Building and Construction General On-site Award 2010. You may wish to identify which allowances found in the Award are applicable and would normally apply to employees covered by this Agreement.”
[7] A telephone mention/directions hearing was held on 30 January 2019 and concluded on the basis that the CFMMEU and Geocon would on a confidential basis respectively provide to the Commission a list of members and a list of employees who were employed at the time bargaining for the Agreement was initiated. Also at that telephone hearing, Geocon advised that it did not object to the abovementioned email of 15 January 2019 from the Commission’s Agreements Team being provided to the CFMMEU (this occurred on 4 February 2019).
[8]
On 1 February 2019 Ms Lucie Hood, Geocon’s Human Resources Manager, sent the following email to the Commission:
“I refer to the directions/hearing on Wednesday 30 January 2019 in relation to the above matter.
At this hearing it was agreed that Geocon Constructors Pty Ltd (Employer) would provide the Commission with a list of employee names who were engaged at the commencement of negotiations (30 May 2018) for the proposed agreement (see attached), and this list would be compared with a list of members provided by the CFMMEU. The basis for this request was to ascertain the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) right to be heard in relation to the matter.
It is not in contention that the CFMMEU is entitled to represent the industrial interests of the employees by virtue of the nature of work performed by the Employer. However, as highlighted in the directions hearing, the Employer submits that its employees have appointed another person (other than an employee organisation) as his or her bargaining representatives for the agreement.
Given this and pursuant to s176 of the Fair Work Act 2009 (Cth), the Employer asserts the CFMMEU Is not a bargaining representative for the purposes of the agreement.
Should the Commission be inclined to grant standing to the CFMMEU on this matter, the Employer’s respectfully requests to be formally heard in relation to this issue.”
[9] Also on 1 February 2019 Ms Hood responded to the Commission’s Agreements Team regarding the various issues raised in respect of the application for approval of the Agreement.
[10] On 15 February 2019 the Commission sent an email to the parties which included the following:
“Dear Ms Hood and Mr Fischer – thank you for your emails of 1 February 2019 and 31 January 2019 respectively. I have examined the information provided and am satisfied that a number of the persons named in your respective lists appear in both of the lists that were provided. Against that background, I will list the application for approval of the Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2018-2022 for further mention and directions to set a timetable for hearing of the application. My chambers will contact you both shortly to discuss suitable dates.”
[11] The issue of whether the CFMMEU should be heard in respect of the application was the subject of a telephone hearing on 15 March 2019. At that hearing Ms Franceska Leoncio of Counsel appeared with permission for Geocon, together with Mr Damon Smith, Geocon’s General Manager, Mr Tristan Ferris, Geocon’s Legal Counsel, Ms Hood and Ms Kristie Burt of the MBA. Mr Tom Fischer, a Legal/Industrial Officer with the CFMMEU, appeared for the CFMMEU. Employee bargaining representatives Messrs Dean Lewis and Wayne Steele also sat in on the telephone hearing.
The CFMMEU’s case
[12] The CFMMEU provided reply submissions on 13 March 2019. In its reply submissions the CFMMEU submitted that:
• the bargaining representative nomination form prepared by Geocon and distributed to employees could have mislead employees into believing that their representation hinged on completing and returning the form when they already had representation via their eligible union;
• the Commission should conclude that Geocon had either interfered in the bargaining representative nomination process or had failed to allow employees a proper opportunity to consider their representation and seek advice in relation to that issue;
• the appointment of employee bargaining representatives was therefore not effective and as a result any employee who was a member of a union maintained their default bargaining representative;
• in the alternative, the matter of the appointment of employee bargaining representatives required further consideration by the Commission;
• the bargaining representative nomination forms were all dated 30 May 2018 which was the same day as notice of employee representational rights was distributed to employees (based on the response to question 2.4 of the Form F17);
• the notice of employee representational rights filed with the Commission and provided to it was incomplete in that details such as the coverage of the proposed agreement had not been inserted, with this constituting a major omission which impacted employees ability to understand and appreciate their rights to representation in bargaining; and
• for all the above reasons, the application for approval of the Agreement should be dismissed.
[13] At the telephone hearing the CFMMEU largely relied on its reply submissions, adding that if it was determined that it did not have standing (despite its view that it did) that its arguments under s.590 of the Act were strengthened by Ms Leoncio’s involvement in the matter. In response to a question from the Commission as to what further material beyond the various issues raised in its submissions regarding the pre-approval steps taken by Geocon the CFMMEU would put before the Commission were it to be heard, the CFMMEU stated that it would most likely seek orders for the production of documents and extract evidence in that manner. The CFMMEU also added that it did not have anyone at that stage who was intending to provide a statement or give evidence about the pre-approval steps taken by Geocon.
Geocon’s case
[14] Geocon in its written submissions contended inter alia that:
• the CFFMEU was not a bargaining representative for the Agreement and therefore had no right to be heard, emphasising that all employees who would be covered by the Agreement had nominated a person other than the CFMMEU as a bargaining representative by nomination forms submitted to it;
• as the Agreement was made without the involvement of the CFMMEU, the Union did not have any relevant knowledge or experience of the Agreement or the agreement making process which would warrant the grant of leave under s.590 of the Act;
• in circumstances where the CFMMEU did not initially seek to be heard in respect of the matters raised by the Commission concerning the application for approval of the Agreement it was unclear what value, if any, the Commission would gain from receiving submissions from the CFMMEU on those matters;
• the scope to bring an appeal as a “person aggrieved” had been found to not of itself give rise to a right to be heard at first instance3;
• the application was distinguishable from KCL Industries Pty Ltd4 and Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd5 when regard was had to the evidence it had provided which showed that:
→ the 20 employees who voted for the Agreement remained employed by it,
→ it employed all but one of its construction workers on a permanent basis,
→ the employees covered by the Agreement formed a “core crew” who were assigned to the next project following completion of a project, and
→ the average tenure of employees employed on a permanent basis was 2.3 years;
• the employees who voted on the Agreement had a stake in the Agreement as they would in all likelihood be employed at the time the Agreement begins to apply;
• a concern that future employees may be precluded from taking industrial action during the currency of the Agreement was not a relevant consideration in approving an agreement6; and
• it opposed the CFMMEU being heard in respect of the issues raised by the Commission in its email of 15 January 2019 for several reasons, including that the Commission is amply capable of undertaking the relevant evaluation task without the need to seek assistance from the CFMMEU.
[15] At the telephone hearing, Geocon responded to two issues canvassed by the CFMMEU in its reply submissions, i.e. the bargaining representative nomination form and the validity of the notice of employee representation rights. Specifically, Geocon submitted that:
• the notice of employee representation rights was emailed to all employees on 24 May 2018 with the bargaining representative nomination form separately provided to employees at a meeting with employees on 30 May 2018;
• the circumstances in this case were vastly different to those which existed in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU)7, referring in particular to the following paragraph from that decision:
“[84] We wish to make it clear that the finding we have made in this case as to what constitutes the notice turns on the particular facts in this matter. We repeat our earlier observation (at paragraphs [68] to [70] that s.174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. Where additional material accompanies a document which complies with the form and content of the prescribed Notice the issue to be determined is what purports to be the Notice. This issue will turn on the evidence and particular circumstances of each case.”8;
• no inference could be drawn from an employer providing a bargaining representative nomination form to employees;
• the actual notice of employee representation rights which was given to employees on 24 May 2018 and provided to the Commission on 27 July 2018 (refer to paragraph [3] above) contained all the prescribed text;
• there was no basis to say that the bargaining representative nomination forms submitted by employees were not valid; and
• there was no basis to hear from the CFMMEU, particularly as it had nothing to add to its written submissions.
[16] Following the hearing and at the Commission’s request, Ms Hood provided a copy of the abovementioned email of 24 May 2018. The email read as follows:
“As you would have seen from the meeting request sent around by Hacey earlier in the week, we wish to commence negotiations for the Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2019 – 2023, with the initial meeting to be held next Wednesday the 30th May at the Metropol Site Office.
Please find attached Notice of Employee Representational Rights that is required to be provided to you under Section 181(2) of the Fair Work Act 2009, for employers to give all employees written notice of their representational rights using this form at least 21 days prior to voting on an enterprise agreement.
I have also attached a copy of the current EBA FYI.
As always, if you have any questions or should you wish to discuss, please don’t hesitate to contact either myself or your Employee Representative (Dean Lewis).”
[17] With particular regard to that email, I note that:
• the bargaining representative nomination form was not attached to the email; and
• the notice of employee representational rights attached to the email complied with the requirements of s.174 of the Act, regulation 2.05 and Schedule 2.1 of the Fair Work Regulations 2009; and
• in her email Ms Hood acknowledged that the date specified at questions 2.4, 2.6 and 2.8 of the Form F17 regarding when the notice of employee representational rights was provided to employees was incorrect and indicated that if required by the Commission a revised Form F17 could be provided.
Consideration of the issues
[18] The material presently before the Commission indicates that:
• the CFMMEU has a number of members employed by Geocon;
• the CFMMEU was not a bargaining representative for the Agreement;
• all but two of the 21 completed bargaining representative nomination forms were dated 30 May 2018, with one of the other two forms undated and the other dated 31 May 2018;
• the CFMMEU’s concerns regarding the Agreement relate primarily to the pre-approval steps; and
• the CFMMEU at the time of the telephone hearing on 15 March 2019 had no evidence to support its contentions.
[19] Beyond this I note that it is very unusual for a replacement agreement to be made some 18 months prior to the nominal expiry date of a current agreement.
[20] In circumstances where the CFMMEU was not a bargaining representative for the Agreement, it does not have an automatic right to be heard in respect of the application for approval of the Agreement. The issue then becomes whether the Commission should exercise the discretion available to it under s.590 of the Act to hear from the CFMMEU. By way of background, s.590 of the Act provides as follows:
“590 Powers of the FWC to inform itself
(1) The FWC 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), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert 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).”
[21] The Full Bench in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited9 observed as follows in respect of the discretion available under s.590 of the Act:
“[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. ”10 (Endnote omitted)
[22] In this case I am willing to exercise the discretion available to the Commission under s.590 of the Act and hear from the CFMMEU regarding the application for approval of the Agreement despite the fact that it was not a bargaining representative for the Agreement. In my view in hearing from the CFFMEU the Commission will be assisted in satisfying itself that the Agreement was genuinely agreed to by employees and meets the other requirements of the Act for approval of an agreement.
Next steps
[23] The application will be listed for mention and directions to set a timetable for determining the application for approval of the Agreement. Further, a copy of the email of 24 May 2018 which provided a copy of the notice of employee representational rights to employees who will be covered by the Agreement will be provided to the CFMMEU with the names of individuals (other than the sender) redacted.
Appearances:
F. Leoncio of Counselfor the Applicant.
T. Fischer for the Construction, Forestry, Maritime, Mining and Energy Union.
D. Lewis and W. Steele as employee bargaining representatives.
Telephone Hearing details:
2019.
Canberra and Melbourne:
March 15.
Printed by authority of the Commonwealth Government Printer
<PR707308>
1 MA000020
2 AE417409
3 Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at endnote 13
4 [2016] FWCFB 3048
5 [2018] FCAFC 77
6 Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 at [115]
7 [2014] FWCFB 2042
8 Ibid at [84]
9 [2014] FWCFB 7940
10 Ibid at [75]