JLW Interiors Pty Ltd

[2017] FWCA 4758

[2017] FWCA 4758

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

JLW Interiors Pty Ltd
(AG2016/4111)

JLW INTERIORS PTY LTD ENTERPRISE AGREEMENT 2016 - 2020

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 12 SEPTEMBER 2017

Application for approval of the JLW Interiors Pty Ltd Enterprise Agreement 2016 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the JLW Interiors Enterprise Agreement 2016 - 2020 (“the Agreement”). It is made by JLW Interiors Pty Ltd (“JLW”) under s.185 of the Fair Work Act 2009 (Cth) (“the Act”). The Agreement is a single enterprise agreement.

[2] Following receipt of the application the Construction & General Division, NSW Branch, of the Construction, Forestry, Mining and Energy Union (“CFMEU”) indicated that it opposed the application and requested to be provided with copies of the F16 Application Form and the F17 Employer’s Statutory Declaration, together with a copy of the Notice of Employee Representational Rights provided to the employees. A response was received from the Master Builders Association of New South Wales on behalf the Applicant indicating that it was opposed to the CFMEU being provided with the documents as it had not been nominated as a bargaining representative for the Agreement by any of the employees to be covered.

[3] After further consultation with both the Applicant and the CFMEU it was agreed that the matter would be set down for hearing to determine whether the Union should be provided with the documents requested. Two of the employee bargaining representatives indicated that they also wished to participate in the hearing. The remaining employee bargaining representatives were provided with the same opportunity but indicated that they did not wish to be involved. Both the Applicant and the CFMEU subsequently provided written submissions in advance of the hearing which took place by telephone on 19 October 2016.

[4] Following the hearing the CFMEU provided advice about three recent Commission decisions which it submitted were relevant to the determination of the matter. The Commission subsequently issued further directions providing both the CFMEU and the Applicant with the opportunity to make any further submissions about the relevance of those decisions. Further written submissions were received from both, and this same process was then repeated after the CFMEU made reference to the decision in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd[2016] FWCFB 8413 (“Southon”) which was handed down on 19 December 2016.

[5] On 22 May 2017 the Commission handed down its decision. 1 It referred to the decision in Southon and concluded that on the basis of that Full Bench decision it was appropriate for the documents to be provided to the CFMEU. Copies of the F16 Application and the F17 Employer’s Statutory Declaration, together with the Notice of Employee Representational Rights, were accordingly provided to the CFMEU on 7 June 2017. In accordance with the usual practice the names of the individual employee bargaining representatives were redacted from the F16. The CFMEU also confirmed that it did not object to this.

[6] However, the CFMEU then advised that it wished to be heard in regard to the application as it opposed the Agreement being approved. It made reference to the following matters in support of it being heard.

“1. The CFMEU has constitutional coverage of the work proposed to be performed under the proposed agreement;

2. The CFMEU has a long history of industrial representation of the work proposed to be performed under the proposed agreement;

3. The CFMEU is a party to the relevant modern award the Building and Construction On-site Award 2010;

4. In the future, given the nature of the company’s business it is likely that other members of the CFMEU will be employed in classifications covered by the proposed agreement;

5. The CFMEU will have the right to appeal any decision given in the present proceedings under s.604 of the Act.” 2

[7] It also provided a written submission which set out the various grounds of objection. It indicated in this context that the requirements in regard to the National Employment Standards had not been complied with, the proposed Agreement had not been genuinely agreed to, and it contained objectionable terms.

[8] The issue concerning the right to be heard, other than as a bargaining representative, in dealing with applications made under section 185 of the Act was dealt with at length in the Full Bench decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd[2014] FWCFB 7940 (“Collinsville”). The Full Bench noted in that decision that it is accepted that the Act does not provide for a right of intervention in proceedings before the Commission by a non-party. However, s.590 of the Act does provide that the Commission may inform itself in relation to any matter before it in such manner as it considers appropriate. The Full Bench then continued to deal with the grounds relied upon in that matter by the CFMEU as to why it should be heard.

[9] It indicated, in conclusion, that any right, interest, or legitimate expectation that might give rise to a right to be heard must be identified and understood against the framework of enterprise bargaining and agreement making established by the Act. In this context it noted that agreements are made principally between an employer and employees, and that enterprise agreements operate primarily at the enterprise level, and do not create rights of general application across an industry.

[10] It continued to indicate whether a Union, that is not a bargaining representative, has a right to be heard in relation to an application for approval will depend upon the circumstances in each case.

[11] In the more recent Full Bench decision in Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd; Bauer Foundations Australia Pty Ltd; Avo Piling Management (NSW) Pty Ltd; Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd [2016] FWCFB 2654 (“MGI Piling”) of the Full Bench stated at [31]:

“Having regard to the framework of enterprise bargaining and agreement making established by the Act and the matters set out in the previous ten paragraphs, we are of the view that the CFMEU is not a person whose rights, interests or legitimate expectations will be directly affected by any decision to approve the new enterprise agreements. Taking the CFMEU’s case at its highest, including the fact that the CFMEU will not have standing, in its own capacity, to sue for a breach of the new enterprise agreements (assuming they are approved), the most that could be fairly said is that the CFMEU may be affected, indirectly or consequentially, by a decision to approve the new enterprise agreements. Such an impact is not sufficient to give the CFMEU a right to be heard in the application for the new enterprise agreements.” 3

[12] The CFMEU in the present matter has set out the reasons why it believes it has a right to be heard. I have had regard to those reasons. I have also had regard to the issues it has raised in regard to the approval of the Agreement. Having had regard to the decisions in Collinsville and MGI Piling I am not satisfied that it should now be given any further opportunity to be heard about the application for approval of the Agreement on the basis that it has not identified or disclosed any legitimate reason or ground that has not already been considered and would warrant it being heard.

[13] The Employer’s Statutory Declaration indicates that the business is involved in the fit out and refurbishment of commercial interiors and operates primarily in New South Wales. At the time that the application was made there were 7 employees to be covered by the proposed Agreement, all of whom were employed on a full-time basis. The business does not employ any casual employees.

[14] The Agreement also contains wage rates that are between 1 % and 9 % greater than the rates contained in the underlying Building and Construction General On-site Award 2010. 4 It also indicates that the “agreement is to be read in conjunction with the NES and “the provisions of the NES relating to the NES entitlement apply, as a minimum standard, to the agreement entitlement.”

[15] In summary, 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.

[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 September 2017. The nominal expiry date of the Agreement is 18 September 2021.

COMMISSIONER

 1   [2017] FWC 2820.

 2   Email correspondence from Construction, Forestry, Mining and Energy Union to Fair Work Commission, dated 28 July 2017.

 3   Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd; Bauer Foundations Australia Pty Ltd; Avo Piling Management (NSW) Pty Ltd; Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd [2016] FWCFB 2654 at [31].

 4   MA000020.

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