Seymour Whyte Constructions Pty Ltd T/A Seymour Whyte

[2019] FWCA 4311

[2019] FWCA 4311

FAIR WORK COMMISSION

DECISION

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

Seymour Whyte Constructions Pty Ltd T/A Seymour Whyte
(AG2018/7275)

SEYMOUR WHYTE CONSTRUCTIONS CIVIL EMPLOYEE ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 26 JUNE 2019

Application for approval of the Seymour Whyte Constructions Civil Employee Enterprise Agreement 2019

[1] On 21 December 2018 Seymour Whyte Constructions Pty Ltd T/A Seymour Whyte (Seymour Whyte) applied for approval of an enterprise agreement known as the Seymour Whyte Constructions Civil Employee Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 7 January 2019 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) wrote to the Fair Work Commission (the Commission) and requested to be provided with copies of Seymour Whyte’s lodgement material and other documents relating to the progression of Seymour Whyte’s application, as the CFMMEU wished to be heard in relation to the application.

[3] On 8 January 2019, the Commission sent copies of Seymour Whyte’s lodgement material to the CFMMEU. Further correspondence passed between the Commission, Seymour Whyte and the CFMMEU regarding whether the CFMMEU was a bargaining representative in respect of the Agreement. In the course of that correspondence, Seymour Whyte referred the Commission to a decision of Commissioner McKenna given ex tempore on 17 December 2018 in a separate matter, and in which the Commissioner concluded that the CFMMEU was not a bargaining representative for the Agreement.

[4] On 15 January 2019 the CFMMEU made extensive submissions in respect of the present matter and stating that its submissions, “…were provided in accordance with the Fair Work Act 2009 (the Act) to assist the FWC in informing itself in relation to this matter.” 1 The submissions deal with concerns the CFMMEU had with respect to National Employment Standards (NES) considerations, together with the better off overall test (BOOT) required to be undertaken by the Commission.

[5] This matter was allocated to me on 29 April 2019.

[6] After allocation to me, I sought Seymour Whyte’s views in response to the CFMMEU’s submissions. On 10 May 2018 Seymour Whyte filed submissions in response to the CFMMEU’s submissions.

[7] I also indicated to Seymour Whyte and the CFMMEU that I would convene a conference before me to discuss this matter. Correspondence was issued from my chambers inviting each of the 11 employee bargaining representatives to participate in the proposed conference of this matter to provide their views.

[8] A conference of this matter was conducted before me in Brisbane on Tuesday, 14 May 2019. Both Seymour Whyte and the CFMMEU participated in the conference. None of the 11 employee bargaining representatives elected to participate in the conference. During the conference it was agreed that Seymour Whyte would propose undertakings addressing the Commission’s and the CFMMEU’s concerns in relation to the Agreement, which it did on 22 May 2019.

[9] I invited the CFMMEU and each of the 11 employee bargaining representatives to provide their views on Seymour Whyte’s proposed undertakings.

[10] On 3 June 2019 the CFMMEU made further submissions regarding Seymour Whyte’s proposed undertakings. None of the employee bargaining representatives provided views on Seymour Whyte’s proposed undertakings.

[11] After reviewing the proposed undertakings and the CFMMEU’s submissions I indicated to Seymour Whyte concerns which I continued to hold in relation to the Agreement and invited Seymour Whyte to provide further undertakings addressing those concerns.

[12] On 10 June 2019 Seymour Whyte provided amended undertakings. I sought the views of the CFMMEU and the employee bargaining representatives on Seymour Whyte’s amended undertakings. Neither the CFMMEU nor any of the employee bargaining representatives provided any further views or submissions regarding Seymour Whyte’s amended undertakings.

[13] Seymour Whyte subsequently provided a signed copy of the final version of its written undertakings; a copy of those undertakings is attached at Annexure A.

[14] Pursuant to s.190(4) of the Act I have sought the views of the 11 employee bargaining representatives for the Agreement, as well as the views of the CFMMEU. None of the 11 employee bargaining representatives, or the CFMMEU indicated any opposition to Seymour Whyte’s undertakings.

[15] I note the CFMMEU’s submissions of 3 June 2019 set out several issues which the CFMMEU submitted remained ‘live issues for the purposes of the BOOT’ as at that date. One of those matters were:

•  The preservation of redundancy provisions under the Building and Construction General On-site Award 2010 (the Award) within the Agreement. 2

[16] Having considered the CFMMEU’s submissions and the further undertakings provided by Seymour Whyte on 10 June 2019 in response to those submissions, I am satisfied that the employees covered under the Agreement would be better off overall if the Agreement applied to those employees than if the Award applied to those employees. 3 Under the Agreement the employees are receiving approximately $10 per hour greater than the Award rate of pay, which more than compensates for the elimination of the Award redundancy entitlements where the employee ceases to be employed by the employer other than for reasons of misconduct or refusal of duty.

[17] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[18] I have taken into consideration the material filed in the Commission. Subject to 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[19] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 July 2019. The nominal expiry date of the Agreement is three years after the commencement of operation of the Agreement.

COMMISSIONER

Annexure A

 1   Submission by the CFMMEU, 15 January 2019, [2].

 2   The CFMMEU referred to CFMMEU v Levant Painting Pty Ltd t/a Levant Altintas [2017] FWCFB 3911, [7].

 3   Fair Work Act 2009, s.193(1).

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