Indigenous Links Pty Ltd

[2018] FWCA 1001

[2018] FWCA 1001

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Indigenous Links Pty Ltd

(AG2017/6732)

Indigenous Links Enterprise Agreement

Building, metal and civil construction industries
Commissioner Johns	SYDNEY, 19 FEBRUARY 2018

Application for approval of the Indigenous Links Enterprise Agreement.

1. On 22 December 2017 Indigenous Links Pty Ltd (Applicant) made an application for approval of the Indigenous Links Enterprise Agreement (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

1. The Agreement was lodged within 14 days after it was made.

2. The Commission received a request for documents from the Construction, Forestry, Mining and Energy Union (CFMEU) on 9 January 2018. Redacted copies of the F16, F17 and Notice of Employee Representational Rights were provided to the CFMEU on 12 January 2018.

The Commission received written submissions outlining various concerns with the Agreement from the CFMEU on 18 January 2018. The Applicant was provided these submissions on 19 January 2018.

1. The CFMEU raised numerous concerns regarding the Better-off Overall Test (BOOT), the agreement being genuinely agreed upon, doubt regarding whether the employees voting had real interest in the terms of the agreement and whether the employees fell within the coverage of the Building and Construction General On-site Award.

1. The Applicant was provided with the CFMEU’s submissions on 19 January 2018. Parties were informed the matter would be heard on 23 January at 4:15pm.

1. A hearing was held by Commissioner Wilson on 23 January 2018.The product of the hearing was;

   a.   An agreement by the Applicant that it would give an undertaking to the effect that the Building and Construction General on-Site Award 2010 would be incorporated into the agreement with the agreement prevailing to the extent of any inconsistency between the two; and

   b.   The filing of a further statutory declaration by Gerard McDermott (the person who signed the F17), giving further particulars about the work to be undertaken by Indigenous Links, as well as the work actually being performed by the employees who voted upon the agreement. The same declaration would give greater particularity of the steps taken to discuss the content of the proposed agreement and its comparison with the reference award.

1. The Matter was reallocated to me for consideration on 5 February 2018.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. In any case, Gerard McDermott has signed the undertakings to indicate his support.

1. Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The undertakings were provided to the CFMEU by email on 5 February 2018. The Construction, Forestry, Mining and Energy Union responded with further submissions regarding the BOOT and leading hand allowances.

1. The Applicant was provided with the submissions on 9 February 2018. The Applicant responded with further comparison of how employees were better off over-all. The Commission agreed with the applicants calculations.

1. On 12 February 2018 the CFMEU notified the Commission that they wished to withdraw their submissions as they had miscalculated and not included overtime and allowances in their calculations.

1. The Construction, Forestry, Mining and Energy Union advised the Commission on 13 February that they no longer maintained their opposition to the approval of the Agreement following the undertaking provided by the applicant.

1. The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 26 February 2018. The nominal expiry date of the Agreement is 20 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE427348  PR600446>

Annexure A