Piotto Bros Cement Flooring Pty Ltd

[2020] FWCA 1535

[2020] FWCA 1535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreementPiotto Bros Cement Flooring Pty Ltd

(AG2019/4116)

PIOTTO BROS CEMENT FLOORING PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 23 MARCH 2020

Application for approval of the Piotto Bros Cement Flooring Pty Ltd Enterprise Agreement 2019.

[1] Piotto Bros Cement Flooring Pty Ltd is a concreting contractor operating in the South Australian construction industry. It works mostly on large scale commercial construction projects in the general building and construction sector. It has applied for approval of a single enterprise agreement known as the Piotto Bros Cement Flooring Pty Ltd Enterprise Agreement 2019 (the Agreement).

[2] The application follows an earlier enterprise agreement approval application in substantially the same terms, which was withdrawn after concerns were raised about whether the agreement had been ‘made’ with a valid majority of employees. That state of affairs has the potential to affect the notification time(s) for the Agreement. If there was more than one ‘notification time’ in relation to the Agreement, a concern arises as to whether all reasonable steps were taken by Piotto to give notice of the right to be represented to each relevant employee.

[3] I find that the earlier version of the enterprise agreement was not approved by a valid majority of employees. 19 of 39 employees voted in favour of the enterprise agreement at that time. There is no evidence that either party subsequently withdrew from bargaining. To the contrary, bargaining resumed and concluded when the Agreement was successfully put to vote on 18 October 2019, with 25 of 30 participating employees voting in favour of the Agreement. The notification time for the earlier enterprise agreement of 14 June 2019 is also the notification time (and the only notification time) for the Agreement.

[4] All but two employees employed at the notification time appear to have been given a notice of employee representational rights by email at or around the notification time on 14 June 2019. The two employees who may not have received a notice as required were labourers. While it is possible they were separately given the notice by hand, that matter is not established on the evidence and as a result, I am not satisfied that all reasonable steps were taken to ensure that each relevant employee was given a notice of employee representational rights within the prescribed time.

[5] However, at the time of commencement of the access period for the Agreement on 18 October 2019 the two employees were no longer employed. In that respect, any potential disadvantage they may have accrued in relation to the agreement-making process could have had no bearing on the outcome. I also note that the Construction, Forestry, Maritime, Mining and Energy Union were involved in bargaining for the Agreement and the evidence of Mr David Cal, Operations Manager is that no employee sought to nominate any other bargaining representative. Other than the matter raised above, there are no reasonable grounds for believing that the Agreement was not genuinely agreed.

[6] I am satisfied that employees covered by the Agreement are unlikely to have been disadvantaged by the omission in relation to the two former employees and that for the purposes of section 188(2) of the Act, the Agreement would otherwise have been genuinely agreed but for the failure to establish strict compliance with section 173. In the circumstances, I am satisfied that the Agreement has been genuinely agreed.

[7] I am also satisfied that the Agreement has been signed as required including by Natale Bria, an employee temporarily engaged on light yard duties but whose employment is covered by the Agreement.

[8] Written undertakings have been given in accordance with s.190 of the Act. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

[9] With the undertakings referred to above, 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 March 2020. The nominal expiry date of the Agreement is 29 March 2023.

[11] The Construction, Forestry, Maritime, Mining and Energy Union is covered by the Agreement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE507520  PR717710>

Annexure A