McMahon Services Australia Pty Ltd T/A McMahon Services Australia

[2019] FWC 5007

[2019] FWC 5007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 – Enterprise agreement

McMahon Services Australia Pty Ltd T/A McMahon Services Australia
(AG2018/5280)

DEPUTY PRESIDENT KOVACIC CANBERRA, 18 JULY 2019

Application for approval of the McMahon Services Australia Pty Ltd Adelaide Civil Projects Enterprise Agreement 2018 – request from the Construction, Forestry, Maritime, Mining and Energy Union to be heard in respect of the application – request opposed by the Applicant – the Construction, Forestry, Maritime, Mining and Energy Union to be provided with the opportunity to file any further or revised written submissions it may wish to.

[1] An application was made on 20 September 2018 for approval of an enterprise agreement known as the McMahon Services Australia Pty Ltd Adelaide Civil Projects Enterprise Agreement 2018 (the Agreement). The application was made by McMahon Services Australia Pty Ltd (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 17 April 2019 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) sent an email to the Commission requesting a copy of the application and associated documentation filed by the Applicant and foreshadowing a request to be heard in respect of the application. On 2 May 2019 the Fair Work Commission (the Commission) provided the CFFMEU with a copy of the application, a redacted version of the accompanying Form F17 statutory declaration and a copy of the Notice of Employee Representational Rights given to employees who would be covered by the Agreement. In doing so, the CFMMEU was asked to advise whether it wished to be heard in respect of the application and provide any submissions in that regard by close of business on 8 May 2019.

[3] The CFMMEU’s submissions were as requested received on 8 May 2019, with the Applicant’s representative advising the Commission later that day that the Applicant opposed the CFMMEU being heard in respect of the application.

[4] Against that background, the CFMMEU’s request to be heard was listed for a telephone hearing on 17 May 2019. Mr Tom Earls, a partner with Fair Work Lawyers, appeared with permission for the Applicant, while Ms Emma Barnes-Whelan, the CFMMEU’s National Legal Officer, appeared for the CFMMEU.

[5] For the reasons outlined below, I have decided to provide the CFMMEU the opportunity to file any further written submissions that it may wish to or any revisions to the submissions it filed on 8 May 2019.

[6] In other developments, on 24 April 2019 the Commission wrote to the Applicant regarding several aspects of the Agreement. The Commission later agreed to a request from the Applicant that its response in respect of those issues should await the determination of the CFMMEU’s request to be heard regarding the application.

The CFMMEU’s case

[7] In summary the CFMMEU submitted that:

•  it was not a bargaining representative for the Agreement;

•  there were a number of inaccuracies in the Form F17 which indicated a likelihood that the requirements in s.180(5) of the Act had not been met and which impacted on both the better off overall test (BOOT) assessment and whether the Agreement had been genuinely agreed to;

•  it was unclear whether the requirement at s.180(2)(a)(ii) of the Act had been met, adding that in the event that material incorporated by way of reference had not been provided at the commencement of the access period this would again support its contention that the Agreement had not been genuinely agreed to;

•  the Agreement included terms which contravened s.55 of the Act concerning the application of the National Employment Standards (NES); and

•  in the absence of a contradictor, the Commission would be assisted by hearing from it as to whether the Agreement met the requirements for approval.

[8] Attached to the CFMMEU’s written submissions was a table which the CFMMEU contended identified 20 categories of entitlements where the terms and conditions provided for in the Agreement fell below the minimum conditions provided for in the relevant modern Award, i.e. the Building and Construction General On-Site Award 2010 (the Award). 1 The table also identified thirteen categories of entitlements which the CFMMEU contended were provided for in the Award but had been omitted from the Agreement. Beyond that, the CFMMEU elaborated on its abovementioned submissions in respect of ss.55, 180(2)(a)(ii) and 180(5) of the Act.

[9] In its submissions, the CFMMEU referred to several Commission decisions, including the decisions in Construction, Forestry, Mining and Energy Union v Shamrock Civil Pty Ltd 2 and Construction, Forestry, Maritime, Mining and Energy Union v Dawsons Maintenance Contractors Pty Ltd3.

[10] At the telephone hearing the CFMMEU largely reiterated aspects of its written submissions. The CFMMEU also disputed the Applicant’s contention (discussed below) that its coverage of civil construction work in South Australia was limited to civil construction work within the footprint of a building. When asked by the Commission as to what it might add to the submissions it had already filed were the Commission to decide to hear from the CFMMEU, Ms Barnes-Whelan responded that she would need to confer with local officials as to what, if any, further submissions might be provided.

[11] The Commission provided the CFMMEU with an opportunity to file by close of business on 22 May 2019 any further submissions it may wish to in respect of the abovementioned coverage issue. On 24 May 2019 the CFMMEU emailed the Commission advising as follows:

“We refer to matter AG2018/5280 – Application by McMahon Services Pty Ltd, which was subject of a telephone hearing on Friday, 17 May 2019.

During that telephone hearing the CFMMEU requested the opportunity to provide further submissions on the issue raised by the Applicant regarding the scope of the union’s eligibility rules and whether this extended to employees covered by the proposed agreement.

The CFMMEU has determined that it no longer seeks to make further submissions regarding this issue.”

The Applicant’s case

[12] The Applicant contended inter alia that:

•  at best the involvement of the CFFMEU in this matter would be of marginal benefit to the Commission, positing that the CFMMEU was seeking to obstruct approval of the Agreement rather than assist the Commission;

•  were the Commission to decide to hear from the CFMMEU that ‘peripheral’ weight should be afforded to the CFMMEU’s submissions;

•  the Agreement applied to civil construction projects undertaken by the Applicant’s Adelaide civil construction division, adding that the Agreement therefore did not apply to a broad group of people or projects;

•  civil construction work to a great extent did not come within the CFMMEU’s coverage rules in South Australia as a result of a long standing demarcation agreement, adding that the exception was where the civil construction work was within the footprint of a building and that such work was an extremely minor part of the Applicant’s activities and had not occurred for some time;

•  at best the CFMMEU had marginal coverage of the work to be performed under the Agreement;

•  the table attached to the CFMMEU’s submissions highlighted its lack of understanding of the Applicant’s operations and the civil construction industry, adding that this ought to weigh heavily against the CFMMEU being involved in this matter,

•  a number of the CFMMEU’s comments in the abovementioned table were incorrect

for instance, the CFMMEU’s comments in the table regarding clauses 3.1-3.2 of the Agreement where it posited among other things that while the Agreement provided for a minimum payment for casual employees of 4 hours that “there is no requirement to also pay fares and travel allowance and expenses” overlooked clause 5.4 of the Agreement which provided that a daily fares allowance of $27.00 per day “will be paid to employees”, with the quantum of the payment being almost $10 per day above the equivalent Award rate

similarly, the CFMMEU’s comments in the table regarding shiftwork did not recognise that any work performed outside the span of hours specified in the Agreement (i.e. 6:00 am to 6:00 pm Monday-Friday) attracted the overtime rates specified in clause 4.1.1.2 of the Agreement; and

•  the CFMMEU’s request to be heard was not filed expeditiously given that the application for approval of the Agreement was made in September 2018.

[13] In support of its submissions the Applicant referred to the decision of Commissioner McKinnon in LS Precast Pty Ltd 4 and the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union; The Australian Workers’ Union v LS Precast Pty Ltd5.

Consideration of the issues

[14] In this case it is not disputed that the CFMMEU was not a bargaining representative for the Agreement. As such, the CFMMEU does not have an automatic right to be heard in respect of the application for approval of the Agreement. The issue then becomes whether the Commission should exercise the discretion available to it under s.590 of the Act to hear from the CFMMEU. By way of background, s.590 of the Act provides as follows:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).”

[15] The Full Bench in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited  6observed as follows in respect of the discretion available under s.590 of the Act:

“[75] We would make the observation however, that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person of organisation. ” 7 (Endnote omitted)

[16] In this case I am willing to exercise the discretion available to the Commission under s.590 of the Act to provide the CFMMEU the opportunity to file any further written submissions it may wish to in respect of the application for approval of the Agreement or any revisions to the submissions it filed on 8 May 2019 in the light of the Applicant’s oral submissions at the telephone hearing on 17 May 2019. In my view the Commission will be assisted in satisfying itself that the Agreement was genuinely agreed to by employees and meets the other requirements of the Act by doing so. I propose to determine the application on the papers.

[17] In terms of next steps, the CFMMEU is to provide any further or revised submissions that it may wish to by no later than close of business on 25 July 2019. The CFMMEU is to advise the Commission as soon as possible if it does not intend to provide any further or revised submissions. A copy of the Commission’s correspondence of 24 April 2019 to the Applicant regarding aspects of the Agreement will be provided to the CFMMEU in conjunction with this Decision.

Appearances:

T. Earls for the Applicant.

E. Barnes-Whelan for the Construction, Forestry, Maritime, Mining and Energy Union.

Telephone Hearing details:

2019.

Canberra, Adelaide and Melbourne:

May 17.

Printed by authority of the Commonwealth Government Printer

<PR710454>

 1   MA000020

 2   [2018] FWCFB 1772

 3   [2018] FWCFB 2992

 4   [2018] FWC 7163

 5   [2019] FWCFB 1431

 6   [2014] FWCFB 7940

 7   Ibid at [75]