Kentech Australia Pty Ltd

[2019] FWC 6269

[2019] FWC 6269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kentech Australia Pty Ltd
(AG2019/2138)

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 11 SEPTEMBER 2019

Application for approval of the Kentech Australia Pty Ltd Enterprise Agreement 2019 - request by union to be heard.

[1] This decision concerns an application made under section 185 of the Fair Work Act 2009 (Cth) (the Act) for the approval of the Kentech Australia Pty Ltd Enterprise Agreement 2019 (the Agreement). The applicant is Kentech Australia Pty Ltd (the Applicant or Kentech).

[2] The Communications, Electrical and Plumbing Union of Australia (the CEPU) requested and was provided with copies of the Form Fl6 - Application for approval of an enterprise agreement and the From Fl7 - Employer's statutory declaration in support of an application for approval of an enterprise agreement in redacted form to protect personal information.

[3] Subsequently, the CEPU made an application to be heard regarding the approval application. The CEPU provided written submissions in support of them being heard and objections they have to the Agreement being approved by the Commission.

[4] Kentech have sought permission to be represented by a lawyer.

[5] Determination of the application by the CEPU to be heard will involve a consideration of case law concerning such matters and the circumstances in which the Commission may choose to exercise its discretion under section 590 of the Act, all matters which involve some complexity. Separately, because Kentech are responding to submissions made by the CEPU who are a registered organisation that specialises in matters in this jurisdiction it would be unfair not to allow Kentech to be represented taking into account fairness between Kentech and the CEPU in this matter. In addition, determination of the section 185 application itself, given the evolution of the case law over recent years, inevitably involves some further complexity. Taking these matters into account permission for Kentech to be represented by a lawyer will be granted under section 596(2)(a) and (2)(c).

[6] Kentech have provided written submissions in response to the CEPU's submissions.

[7] This decision deals only with the CEPU's application to be heard.

The CEPU's submission

[8] It is submitted that the CEPU has an interest in the Agreement because it has eligibility coverage and membership within the scope of the Building and Construction General On-site Award 2010 (the Award) which will be displaced by the Agreement.

[9] The CEPU submits it has no members currently employed by Kentech however, it has historically had members employed by Kentech in the past few years in Western Australia and Queensland.

[10] It is likely the CEPU will in the future have members who will be covered by the Agreement and so will be entitled to represent their industrial interests.

[11] The Commission may be assisted by submissions from the CEPU as a contradictor who has familiarity with and knowledge of the Award.

[12] The CEPU will have the requisite interest in any subsequent decision to approve the Agreement, so as to have standing to appeal such a decision under section 604 of the Act.

Kentech's submission

[13] On behalf of Kentech it is submitted that the CEPU should not be heard by the Commission.

[14] The CEPU has no right to be heard in the Application.

[15] The Agreement was made in June 2019, by a unanimous vote to approve with the Applicant' s three employees.

[16] The Agreement will cover seven classifications which mirror those in the Award. The employees who would be employed under the Agreement and the work they complete would otherwise be covered by the Award.

[17] In this case, each of the three employees appointed a bargaining representative that was not the CEPU. On a confidential basis the Applicant has provided the bargaining representative appointment forms of each of these employees to the Commission.

[18] The CEPU was not a bargaining representative for the Agreement and does not have any members currently employed that would be covered by the Agreement should it be approved.

[19] To be granted leave to be heard the CEPU must show it has a right, interest or legitimate expectation in relation to the Agreements approval or otherwise satisfy the Commission that it is appropriate to exercise its discretion under section 590 of the Act.  1

[20] It is not the case that the CEPU or its members would be directly affected by a decision to approve the Agreement. Neither were involved in the bargaining process and there is no guarantee that the CEPU or its members will be covered by the Agreement in the future.

[21] The Commission therefore is not required to provide the CEPU with an opportunity to be heard, and a refusal to do so will not amount to a failure to provide procedural fairness.

[22] None of the other arguments from the CEPU provide sufficient grounds that they should be heard by exercise of the Commissions discretion.

[23] In this case there are no unusual characteristics that warrant the CEPU being granted leave to be heard.

[24] The absence of a contradictor of itself does not warrant a grant of leave to be heard.

Consideration

[25] In this case the CEPU was not involved in the bargaining process and it has neither any right, interest or legitimate expectation concerning the Agreements approval. Neither the CEPU's interests nor its members will be directly affected by the outcome of this Application.

[26] Further the CEPU not being involved in the bargaining process has no particular knowledge of relevant events.

[27] The CEPU has not put forward a sound reason why the Commission should exercise its discretion under section 590 of the Act to allow it to be heard in this matter.

[28] The CEPU will not be heard further regarding this Application.

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 1   CFMEU v Collinsville Coal Operations Pty Ltd (2014) 246 IR 21 at [52] and [53].