Kuredale Pty Ltd T/A Metro Lintels

[2017] FWCA 4414

[2017] FWCA 4414

The attached document replaces the document previously issued with the above code on 24 August 2017.

The document has been edited by inserting paragraph number [10] to precede the text in the final paragraph.

Alexa Kuzyk

Associate to Commissioner Gregory

Dated 25 August 2017

[2017] FWCA 4414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kuredale Pty Ltd T/A Metro Lintels
(AG2016/7013)

METRO LINTELS OFFSITE ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 24 AUGUST 2017

Application for approval of the Metro Lintels Offsite Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Metro Lintels Offsite Enterprise Agreement 2016 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by Kuredale Pty Ltd T/A Metro Lintels. It is a single enterprise agreement.

[2] Following receipt of the application the Construction, Forestry, Mining and Energy Union (“CFMEU”) indicated that it wished to be heard in regard to the application, and provided a written submission highlighting various matters it wished to address. However, it did not state that it was a bargaining representative for the Agreement, and relied instead on its eligibility rules and its extensive history of representation in the building and construction industry.

[3] 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.

[4] 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.

[5] 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.

[6] 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. I have had regard to those reasons. I have also had regard to the issues that it has raised in regard to the approval of the Agreement. Having had regard to the decision of the Full Bench in Collinsville I am not satisfied that the CFMEU should now be given a 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 ground that has not already been considered that would warrant it being heard.

[7] After reviewing the application and the terms and conditions contained in the proposed Agreement, together with the form F17 Employer’s Statutory Declaration, the Commission sought clarification from the Applicant about a range of matters. The Applicant has subsequently provided various undertakings in response. The undertakings are contained in the attached document. I am satisfied they will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[8] It is also noted that the Flexibility Term in clause 24 of the Agreement does not comply with the model term in that it provides for 13 weeks’ notice of termination instead of 28 days’ notice. The model term is accordingly taken to be a term of the Agreement in accordance with s.202(4) of the Act.

[9] Subject to the undertakings referred to above I am otherwise satisfied that each of the requirements of ss. 186,187 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and in accordance with s.54 of the Act will operate from 31 August 2017. The nominal expiry date of the Agreement is 30 August 2021.

COMMISSIONER

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ANNEXURE A