Niepe Construction Pty Ltd

[2021] FWCA 4025

[2021] FWCA 4025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Niepe Construction Pty Ltd
(AG2021/5430)

NIEPE CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 9 JULY 2021

Application for approval of the Niepe Construction Pty Ltd Enterprise Agreement 2021.

Background

[1] On 1 June 2021, an application was made for the Fair Work Commission (Commission) to approve a proposed enterprise agreement known as the Niepe Construction Pty Ltd Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It was made by Niepe Construction Pty Ltd (Niepe/Employer/Applicant), who were represented in the matter by Drayton’s Workplace Consulting. The proposed Agreement is a single enterprise agreement.

[2] On 4 June 2021, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/Union), who are listed as bargaining representative in the Form F16 - Application for Approval of Enterprise Agreement, sent an email requesting the Application documents (Form F16, Form F17, and the Notice of Employee Representational Rights (NERR). On the same day, the requested documents were provided to the Union.

[3] The matter was allocated to my Chambers on 8 June 2021. On 9 June 2021, the parties were emailed my usual directions as well as a copy of the Commission’s legislative checklist outlining any preliminary concerns which may have created a barrier to the proposed agreement being approved. Undertakings satisfying the concerns raised in the Commission’s legislative checklist were filed and served by the Applicant on 15 June 2021.

[4] The CFMMEU maintained an objection to the approval of the proposed agreement and so it was necessary for the parties to file and serve written materials. After the filing of materials, the parties advised my Chambers that there was consent for the matter to be determined ‘on the papers’ (i.e. without the need for a formal hearing).

[5] The sole ground upon which the Union contends that the Commission should not approve the Agreement is as follows:

“The Applicant failed to meet its obligations under s.187(2) of the FW Act and as such a Genuine agreement was not met.” 1 (Good Faith Bargaining Issue)

The Legislation

[6] Section 186 of the FW Act sets out the circumstances under which the Commission must approve an enterprise agreement. Section 186(2)(a) provides that the Commission must be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement.

[7] Section 187 of the FW Act then sets out additional requirements for approval. Section 187(2) of the FW Act in full provides as follows:

“(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.”

[8] The ‘good faith bargaining requirements’ that a bargaining representative for a proposed Agreement must meet are outlined in s.228 of the FW Act. It provides as follows:

“Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

Facts

[9] As stated above, the parties agreed that the matter could be decided on the papers. Consequently, the parties forfeited the opportunity to cross-examine each other’s witness. For Neipe evidence comprised a Form F17 Employer’s Declaration made by its Director, Antonio Pepe. For its part the CFMMEU provided a witness statement from one of its officials, Dean Reilly.

[10] I make the following findings of fact:

a) The predecessor enterprise agreement, the Niepe Construction Pty Ltd Enterprise Agreement 2015 passed its nominal expiry date on 11 March 2020.

b) On 15 January 2021 Niepe made an application to the Commission to approve a new enterprise agreement (AG2021/57).

c) On 28 January 2021 Niepe’s supervisor, Lou Rossie, met with the CFMMEU about AG2021/57 and the CFMMEU’s concerns. 2

d) On 16 February 2021 CFMMEU Official, Dean Rielly met with Niepe Director, Tony Pepe at Bowen Hills 3 about a proposed agreement.

e) Mr Rielly advised Mr Peper that the CFMEU had members who are employed by Niepe and that the CFMMEU is a bargaining representative in relation to the further proposed agreement. 4

f) Mr Rielly expressed an interest in meeting with the employees. Mr Rielly spoke about:

i. negotiating in good faith;

ii. a log of claims the CFMMEU would put forward in relation to bargaining (which would include the use of industry Funds (Redundancy etc.); and

iii. the duration of the agreement. 5

g) Mr Pepe “agreed to inform [Mr Rielly] when the company would commence bargaining.” 6

h) Sometime later Mr Rielly learned that Greg Power, the Principal Consultant with Drayton’s Workplace Consulting was the bargaining representative for Niepe. Mr Rielly made contact with Mr Power to advise him that he (Mr Rielly) would be bargaining for CFMMEU members. 7

i) On 4 March 2021 Deputy President Mansini wrote to Niepe about concerns she had with AG2021/57.

j) On 4 March 2021 Niepe withdrew its application to approve AG2021/57.

k) On 28 April 2021 Niepe initatiated bargaining with its employees for the Agreement (AG2021/5430) when it provided each employee with a Notice of Employee Representational Rights. 8

l) On 29 and 30 April 2021 Niepe’s supervisor, Lou Rossi, conducted meetings with employees to explain the Agreement. 9

m) On 3 May 2021 employees “were provided with an email copy of the final agreement and notice of ballot…” 10 Employees were asked to respond by 18 May 2021 if they had any concerns.11

n) On 6 May 2021 12 or 11 May 202113 Mr Power for Neipe emailed Mr Rielly. It advised him that “an agreement had been negotiated”.14 Mr Rielly contacted Mr Pepe about not being consulted or being given a chance to speak with CFMMEU members.15

o) On 17 May 2021 Mr Rielly “circulated a message with [CFMMEU] members … reminding them that the CFMEU are negotiating for them and to let [the union] know where [employees were] working. 16

p) On or about 18 May 2021 Mr Rossi “advised the CFMMEU representative that the ballot for the enterprise agreement was scheduled for 21 May 2021.” 17

q) On 21 May 2021 the employees voted on the Agreement. 51 employees were eligible to vote. 49 employees voted. 48 voted to approve the Agreement.

r) On 1 June 2021 Neipe filed the current application for approval of the Agreement.

s) On 4 June 2021 Mr Rielly spoke with Mr Power about arranging a meeting with employees. 18

t) On 15 June 2021 Mr Rielly met with employees who advised him that the Agreement had already been voted upon. 19 Mr Rielly recounts being told by employees concerns they had about the voting process.

u) On Friday, 21 June 2021 Mr Rielly “met with a group of workers at Caboolture service centre in the carpark. [The meeting was] … facilitated by Niepe.” 20

v) Mr Power sought comments on the Employer’s documentation. Time constraints hampered Mr Rielly’s ability to respond. 21

The Union’s Submissions

[11] The CFMMEU submitted the following:

“4. CFMEU official, Dean Rielly, has responsibility for representing members employed by the Applicant. Attachment 1 to this submission is a witness statement supplied by Mr. Rielly in relation to the events surrounding bargaining.

5. Point 3 of this statement goes into discussions Mr. Rielly had with the Applicant in relation to bargaining in good faith, bargaining representation, members and a brief idea of what might be expected in relation to a log of claims. The Applicant agreed to inform Mr. Rielly when bargaining would commence. This did not happen.

6. The Applicant deliberately excluded Mr. Rielly and the CFMEU from any bargaining and as such breached their good faith bargaining requirements under the Act. Specifically,

7. As outlined in Mr. Reilly’s statement the CFMEU and some of its members that work for the Applicant have reservations regarding how the entire process was undertaken, including how the vote was conducted. Meetings held in relation to this were done with no one afforded union representation and while the Applicants son was present in the room leaving workers feeling like they could not ventilate issues. Additionally, a member of the CFMEU has raised concern about the use of a voting process whereby you have to email your employer from your usual email address and inform him of your vote. He asserted that people voted in a particular way due to the pressure of using such a voting system.

….

9. This section of the Act out lines additional requirements that must be met before the commission can approve an enterprise agreement under s 186. We are informed by ss 187(2) of the requirement for approvals of agreements being consistent with good faith bargaining requirements.

….

11. The Applicant failed to disclosing relevant information to a Mr. Rielly. In fact, as per Mr. Rielly’s statement the Applicant failed to inform him when bargaining commenced did not let him know when bargaining meeting were being held. Was not given a chance to meet with members nor put forward a proper log of claims. It is the opinion of the CFMEU that the applicant’s behavior in respect to this matter was capricious, unfair and undermined freedom of association and collective bargaining.

Conclusion

12. For reasons outlined in these submissions the CFMMEU submits that the Proposed Agreement is not capable of approval under the FW Act and therefore, the application for approval must be dismissed.”

13. This statement is true and correct to the best of my knowledge at the time of making.”

The Applicant’s Submissions

[12] The Applicant filed written submissions in reply on 24 June 2021. The Applicant’s submissions were as follows:

“1. In response to the submissions by the CFMMEU in respect of good faith bargaining the Applicant makes the following submissions.

2. The application for approval of the enterprise agreement was made after the withdrawal of a previous application for the approval of an enterprise agreement tilted the Niepe Constructions Pty Ltd Enterprise agreement 2020.

3. The withdrawal of the application was due to representations by the CFMMEU.

4. On or about 28 January , Lou Rossie, on behalf of the Applicant, attended a meeting with CFMMEU representatives. The issues that the CFMMEU nominated at the meeting were the application of time off in lieu of overtime provisions and that the proposed enterprise agreement did not contain all of the CFMMEU nominated entitlement funds for redundancy and income protection. The CFMMEU advised that they could not provide a forensic response on the issues with the enterprise agreement, with the exception of the items nominated.

5. The Applicant drafted a new enterprise agreement for consideration by the employees and their representatives, that excluded prescriptions relating to time off in lieu and inserted the CIPQ income insurance scheme as an additional entitlement. The previous enterprise agreement contained an entitlement to the BERT redundancy scheme and this entitlement was maintained in the newly proposed enterprise agreement.

6. The bargaining for the newly proposed enterprise agreement was commenced on 28 April 2021 with the issue of the Notice of Employee Representational Rights by email to all employees.

7. A copy of the proposed enterprise agreement was issued to all employees on 3 May 2021, requesting any responses be provided by 18 May 2021.

8. On 6 May 2021, the CFMMEU was provided with a copy of the newly proposed enterprise agreement via email from the Applicant’s bargaining representative Drayton’s Workplace Consulting. The email explained that the provisions relating to time off in lieu and working on weekends had been removed and entitlements of the BERT redundancy scheme and the CIPQ insurance had been included.

9. Dean Rielly (CFMMEU) contacted Drayton’s on or about 11 May 2021 advising that the Union would respond and was seeking a meeting with the employees. Mr Riley was advised to contact Lou Rossi to arrange a meeting.

10. A meeting with employees was arranged by Lou Rossi on or about 18 May 2021. Mr Rossi advised the CFMMEU representative that the ballot for the enterprise agreement was scheduled for 21 May 2021.

11. Mr Ross did not receive any correspondence or requests for meetings from the Union subsequent to the meeting with employees and until after the application was lodged.

12. Mr Rossi was at all times the recognised management representative for the Applicant for bargaining negotiations.

13. Mr Rossi attended two staff meetings in the bargaining period with employees to explain the terms of the enterprise agreement, as well as a number of individual telephone discussions.

14. The Applicant responded to the CFMMEU in respect of the issues raised by the CFMMEU as a bargaining agent in good faith.

15. There were no further issues or claims received by the CFMMEU during the bargaining period for the Applicant’s response.

16. The ballot result was 48 in favour and one against.

17. The Applicant rejects Mr Rielly’s supposition that the voting process was coercive and/or that the vote was not a true and fair reflection of the employee’s agreement to the proposed enterprise agreement.

18. In view of the following circumstances as outlined above, including:

•  History of repeated bargaining;

•  Formal discussions with the bargaining representative;

•  The accommodation of entitlements raised by the bargaining representative in the enterprise agreement; and

•  The overwhelming support of the enterprise agreement by the employees.

The Commission can be satisfied the approval of the enterprise agreement is neither inconsistent with nor undermining the good faith bargaining requirements if the Act.

19. A statement by Mr Rossi can be provided to support these submissions if required.”

Consideration

[13] Section 187(2) of the FW Act in full provides as follows:

“(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.”

(my emphasis)

[14] The first observation to make is that the present Agreement is not one “in relation to which a scope order is in operation.” I am not satisfied that the CFMMEU’s reliance upon section 187(2) is relevant.

[15] In any case when assessing whether an agreement was genuinely agreed to the Commission must be satisfied that “there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by employees.”

[16] In this matter the CFMMEU complains that employees were not afforded union representation. I reject the contention. All employees were provided with a Notice of Employee Representational Rights. If CFMMEU members did not contact the CFMMEU and seek its assistance that is not a complaint that falls at the feet of Niepe.

[17] Further the CFMMEU complains that Niepe failed to disclose “relevant information to Mr Rielly.” The facts to do not support the complaint. Since the lodgement of AG2021/157 the CFMMEU has been on notice about Niepe’s bargaining intentions. In part Niepe withdrew AG2021/157 because of concerns raised by the CFMMEU. Niepe attempted to address those concerns in the present Agreement. That is, in fact, evidence of good faith bargaining. Mr Rielly was provided with a copy of the proposed Agreement before it was voted upon. If he had concerns about good faith bargaining he could have arranged for the CFMMEU, at that time, to make an appropriate application to the Commission. The CFMMEU did not.

[18] The real complaint seems to be that Niepe did not structure its timetable around the availability of Mr Rielly. To the extent that Mr Rielly had other priorities, that is a matter for him. It is not evidence of Niepe failing to bargain in good faith.

[19] No witness evidence has been received from employees complaining about the bargaining or voting process. Mr Rielly’s evidence is hearsay only. I am not prepared to rely upon it to find that there was not genuine agreement to the Agreement. The CFMMEU could have led proper evidence about any such complaint. It could have protected members who wanted to complain by seeking confidentiality orders in respect of their evidence. It did not. Consequently, I am not satisfied that there is any evidence about a lack of genuine agreement.

[20] On the contrary the evidence is that 48 out of 49 eligible employees who voted, voted to approve the Agreement.

Conclusion

[21] The Applicant has filed undertakings in the matter (Attachment A). Subject to these undertakings, 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. This includes, without limitation, me being satisfied that the Agreement was genuinely agreed to.

[22] The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 16 July 2021. The nominal expiry date of the Agreement is 8 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE512174 PR731536>

Annexure A

 1   CFMMEU Outline of Submissions dated 18 June 2021, at [3](a).

 2   Submission by Niepe in response dated 24 June 2021, paragraph 4.

 3   Statement of Dean Rielly dated 18 June 2021, paragraph 3.

 4   Ibid.

 5   Ibid.

 6   Statement of Dean Rielly dated 18 June 2021, paragraph 4.

 7   Ibid.

 8   Form F17 in answer to question 18.

 9   Form F17 in answer to question 22.

 10   Form F17 in answer to question 21.

 11   Submission by Niepe in response dated 24 June 2021, paragraph 7.

 12   Submission by Niepe in response dated 24 June 2021, paragraph 8.

 13   Statement of Dean Rielly dated 18 June 2021, paragraph 7.

 14   Ibid.

 15   Ibid.

 16   Statement of Dean Rielly dated 18 June 2021, paragraph 5.

 17   Submission by Niepe in response dated 24 June 2021, paragraph 10.

 18   Statement of Dean Rielly dated 18 June 2021, paragraph 10.

 19   Statement of Dean Rielly dated 18 June 2021, paragraph 11.

 20   Statement of Dean Rielly dated 18 June 2021, paragraph 8.

 21   Ibid.