Pipe & Dirt Contractors (NSW) Pty Ltd T/A Pipe & Dirt Contractors (NSW) Pty Ltd

[2018] FWC 1026

[2018] FWC 1026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Pipe & Dirt Contractors (NSW) Pty Ltd T/A Pipe & Dirt Contractors (NSW) Pty Ltd
(AG2017/3884)

COMMISSIONER RIORDAN SYDNEY, 22 FEBRUARY 2018

Application for approval of the Pipe and Dirt Contractors (NSW) Pty Ltd Enterprise Agreement 2017.

[1] Pipe and Dirt Contractors (NSW) Pty Ltd have applied to the Fair Work Commission (Commission) to approve the Pipe and Dirt Contractor (NSW) Pty Ltd Enterprise Agreement 2017 (the Agreement).

[2] The Construction, Forestry, Mining and Energy Union (CFMEU) has opposed the approval of the Agreement and has sought the right to be heard in relation to the application. The CFMEU claimed that they were a bargaining representative for the Agreement on their understanding that they had members who are employed by the Applicant.

[3] Leave was granted for the Applicant to be represented by Mr Paul Moorhouse, of Counsel, in accordance with section 596(2) of the Fair Work Act, 2009 (the Act) due to the complexity of the issues at hand. The CFMEU has been represented by its Legal Officers Mr Tom Fischer and Mr Ben Kruse.

[4] The Commission has convened a number of Conferences between the parties in an attempt to identify and resolve the issues of disputation. As a result of these Conferences, the CFMEU now accepts that it had no right to be a bargaining agent for the Agreement. Also, the CFMEU no longer submits that it has a right to be heard based on its principal involvement in the Modern Award or the Building and Construction Industry.

[5] The Union now seeks the Commission to exercise its discretion in accordance with section 590 of the Act to inform itself. Relevantly, section 590 states:

“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).

[6] The CFMEU has identified a number of concerns with the proposed Agreement, including issues associated with the BOOT analysis, casual employment and base rates of pay.

[7] The CFMEU has also raised concerns about the authenticity of the approval process and referred the Commission to a decision of the Federal Court of Australia in CFMEU v One Key Workforce Pty Ltd 1.

[8] The Applicant submitted that section 590 of the Act should not be used as a vehicle to disrupt the approval process, as prescribed by the Act.

[9] The Applicant argued that the CFMEU has unsuccessfully run this exact same argument before Gregory, C in JLW Interiors Pty Ltd 2 and AWX Labour Pty Ltd3.

[10] Finally, the Applicant submitted that the CFMEU’s concerns are purely speculative and in any event could be dealt with by the Commission during the approval process.

Consideration

[11] I have taken into account all of the material and submissions that has been provided by the parties.

[12] I have taken into account that there appears to be a number of “unique” provisions in the proposed Agreement. I am conscious that there are a plethora of possible outcomes in relation to the proposed working arrangements that will require detailed analysis and comparison.

Conclusion

[13] The proposed Agreement has a number of very unique provisions. Whilst there are multiple issues and questions that I have for the Applicant, in particular clauses 5, 6, 8, 9, 10, 12, 15 and Schedule A, I am satisfied that the Union may also be able to assist with my enquiries in relation to the provision of relevant information in regards to the operation of the industry, the industry’s safety standards and the ramifications of a number of the proposed clauses.

[14] In accordance with section 590(1) and (2)(a) and (b) of the Act, I exercise my discretion and allow the CFMEU the opportunity to be heard in relation to this application.

[15] A Directions Conference will be convened by the Commission in the near future.

COMMISSIONER

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 1 [2017] FCA 1266

 2   [2017] FWC 4758

 3   [2017] FWC 4820

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