KAEFER Integrated Services Pty Ltd

[2017] FWCA 3839

[2017] FWCA 3839 [Note: This decision has been quashed - refer to Full Bench decision dated 20 November 2017 [[2017] FWCFB 5630]

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

KAEFER Integrated Services Pty Ltd

(AG2017/2240)

KIS North West Onshore Operations Enterprise Agreement 2017-2021

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 21 JULY 2017

Application for approval of the KIS North West Onshore Operations Enterprise Agreement 2017-2021.

1. An application has been made for approval of an enterprise agreement known as the KIS North West Onshore Operations Enterprise Agreement 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by KAEFER Integrated Services Pty Ltd. The Agreement is a single enterprise agreement.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am 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.

1. Subject to the undertakings referred to above, I am 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. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. It is noted that the Construction, Forestry, Mining and Energy Union (“CFMEU”) sought to be heard in regard to the application. In a letter dated 30 June 2017 it acknowledged it was not a bargaining representative for the Agreement. However, it continued to indicate that it represents construction workers in the construction industry who work for or may work for the Applicant. It also indicated that it has an “interest in ensuring that conditions in the construction industry are consistent with the legislative requirements and are fair to the people it represents.” It also indicated that after reviewing the forms F16 and F17, and the terms and conditions contained in the proposed Agreement, it was of the view that it does not meet the requirements of the “better off overall” test. It concluded by indicating that it considered it appropriate under section 590(1) of the Fair Work Act for the Commission to convene a hearing in order to consider the Union’s views.

1. The Applicant provided a letter to the Commission dated 4 July 2017 in which it objected to the request by the CFMEU to be heard in regard to the application. It indicated, inter alia, that the CFMEU was not a bargaining representative for the proposed Agreement, and the employees had instead appointed an alternative bargaining representative. It also noted that the CFMEU had not identified any specific reason why it believed the requirements of the “better off overall” test had not been satisfied.

1. The issue about the right to be heard, other than as a bargaining representative, was obviously 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. The Full Bench noted in that decision that it is accepted that the Fair Work Act does not provide for intervention in proceedings before the Commission by a non– party. However, s. 590 provides 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 by the CFMEU as to why it should be heard.

1. 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.

1. It continued to indicate that whether a union, that is not a bargaining representative, has a right to be heard in relation to an application for approval will depend on the circumstances in each case.

1. The CFMEU in the present matter has set out the reasons why it believes it has a right to be heard in regard to the present application. Having had regard to the decision of the Full Bench in Collinsville I am not satisfied that it should be given the opportunity to be heard in regard to the application for approval of the agreement on the basis that it has not identified or disclosed any legitimate reason or ground that would warrant it being heard.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 July 2017. The nominal expiry date of the Agreement is 20 July 2021.

COMMISSIONER

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ANNEXURE A