MGI Piling (NSW) Pty Ltd

[2015] FWC 6387

[2015] FWC 6387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for Order of Production

MGI Piling (NSW) Pty Ltd
(AG2015/1040)

Bauer Foundations Australia Pty Ltd

(AG2015/1055)

Avo Piling Management (NSW) Pty Ltd

(AG2015/1139)

Wagstaff Piling Pty Ltd

(AG2015/1224)

Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd

(AG2015/1248)

COMMISSIONER RIORDAN SYDNEY, 15 SEPTEMBER 2015

Application for approval of the Piling Contractors Pty Ltd Enterprise Agreement 2015 - 2019 Application for approval of the Wagstaff Piling Pty Ltd and NSW Employees Enterprise Agreement 2015 - 2019 Application for approval of the MGI Piling (NSW) Pty Ltd Enterprise Agreement 2015 - 2019 Application for approval of the Bauer Foundations Australia Pty Ltd Enterprise Agreement 2015-2019 Application for approval of the Avopiling Management (NSW) Pty Ltd Enterprise Agreement 2015 - 2019.

[1] This decision relates to a number of Form F52 (Order to Produce) requests from the Construction, Forestry, Mining and Energy Union (CFMEU) for the five listed piling companies (the Companies) to produce documents in relation to the Enterprise Bargaining process undertaken in each of the applicant companies.

[2] In accordance with section 596(2) of the Fair Work Act, 2009 (the Act), leave was granted for Mr Jim Pearce of Counsel to appear for the CFMEU and for Mr Bruce Hodgkinson of Counsel to appear for the five piling companies.

[3] In reaching this decision, I have taken into account the submissions of the parties.

[4] The five companies have applied to have their respective Enterprise Agreements approved by the Fair Work Commission (FWC) following successful ballots of their employees. Four of the Companies, namely the Piling Contractors Pty Ltd; MGI Piling (NSW) Pty Ltd; Bauer Foundations Australia Pty Ltd and Avopiling Management (NSW) Pty Ltd were negotiated by representatives of management and elected/appointed employee bargaining representatives. The Wagstaff Piling Pty Ltd (Wagstaff) Enterprise Agreement was negotiated by representatives from management, elected/appointed employee bargaining representatives and the CFMEU, who were appointed as Bargaining Representatives by a number of employees.

[5] The CFMEU is objecting to the approval of all five agreements.

[6] The CFMEU’s F52 applications arise out of statutory declarations that have been provided by the respective Managers of the Companies in relation to the arbitration set down for 28 September 2015. These statutory declarations all refer to the documents and processes that were undertaken by the Companies during the enterprise agreement negotiations and ballot process.

[7] Mr Hodgkinson referred me to a decision of a Full Bench of the FWC in CFMEU v Collinsville Coal Operations Pty Ltd 1.

[8] This decision raises an interesting question in relation to an Organisation’s “Right to be Heard” when they were not a bargaining representative during the negotiations. This matter will be a threshold issue in the proceedings on 28 September 2015.

[9] In relation to the four “non-union” Agreements, I am not convinced that the CFMEU is participating in anything more than a “fishing” exercise in lodging the respective Form F52. It would appear that the CFMEU is simply trying to find a technical breach upon which to mount an argument why the relevant Agreement should not be approved by the FWC.

[10] With respect to Mr Pearce and the CFMEU, that is the role of the FWC. Part 2.4, Division 4, subdivision A, B, C, D and E of the Act sets out in detail the issues, processes and evaluation that must be undertaken by the FWC before approving an Enterprise Agreement. It is not the role of the CFMEU to interpose itself into this position.

[11] For this reason the F52 applications in Matters AG2015/1040; AG2015/1055; AG2015/1139 and AG2015/1248 are denied. The CFMEU has not provided a plausible argument as to why they should have access to the requested information in these matters.

[12] However, as an endorsed employee bargaining representative in the Wagstaff Agreement, the CFMEU has legitimate rights. One of those rights is to ensure that the process as explained, identified and sworn by the NSW State Manager of Wagstaff can be tested.

[13] The F52 for Wagstaff sought by the CFMEU could be described as being very “wide”. As a bargaining representative, the CFMEU may have/or should have, received any number of these documents. In reality, that may not have occurred.

[14] In order to ensure that the CFMEU receives the appropriate level of procedural fairness in order to build its case, I am prepared to allow all of the documents sought in the F52 except for the following requests: 1, 7, 8, 9 (in relation to paragraph 16 of Mr William Fleuters statement), 18, 21 and 24.

[15] Wagstaff will have until 4pm on 17 September 2015 to comply with the attached order.

[16] The Applicant companies have put the CFMEU on notice in relation to their right to appear in the future proceedings involving the non union agreements. For all intent and purposes, Mr Hodgkinson stated his case in relation to this issue yesterday.

[17] Attached are the relevant directions in relation to this threshold issue.

[18] I so Order.

COMMISSIONER

 1   [2014] FWCFB 7940

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