Strategic Workforce Solutions Pty Ltd

[2021] FWCA 669

[2021] FWCA 669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Strategic Workforce Solutions Pty Ltd
(AG2020/3622)

STRATEGIC WORKFORCE SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2020

Maritime industry
COMMISSIONER WILLIAMS	PERTH, 10 FEBRUARY 2021

Application for approval of the Strategic Workforce Solutions Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Strategic Workforce Solutions Pty Ltd Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Strategic Workforce Solutions Pty Ltd (the Applicant). The Agreement is a single-enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union – Maritime Union of Australia Division (the CFMMEU) is seeking to be heard in relation to this application.

[3] The CFMMEU submits it is eligible to represent employees employed in the marine towage industry as defined in the Marine Towage Award 2020 [MA000050] (the Towage Award) and employees engaged in the ports, harbours and enclosed water vessels industry as defined in the Ports, Harbours and Enclosed Water Vessels Award 2020 [MA000052] (the Inshore Award). The combined coverage of the Towage Award and the Inshore Award largely coincides with the coverage of the proposed Agreement. As such, the CFMMEU is able to cover employees whose employment may fall within the coverage of the proposed Agreement.

[4] Consequently, the CFMMEU asserts that some of the Applicant’s employees or prospective employees that may be employed under the Agreement are eligible to be members of the CFMMEU.

[5] The CFMMEU submits that approval of the Agreement and its effect concern the union and this concern is the reason it seeks permission to make submissions opposing approval of the Agreement.

[6] The CFMMEU concedes it did not have members involved in making the Agreement and was not a bargaining representative for the Agreement so has no right to be heard but seeks the opportunity to be heard by virtue of section 590 of the Act.

[7] Finally the CFMMEU argues that where there would otherwise be no contradictor and it can assist the Commission in determining whether the Agreement meets the requirement for approval or whether there are any other reasons why it should not be approved taking into account the matters it has raised as objections to approval.

[8] The CFMMEU’s objections to the application in summary are as follows.

[9] The Agreement is modelled on the provisions of the Towage Award. In particular, the Agreement and the Towage Award allow for an average of 35 ordinary hours to be worked per week on any day Monday to Sunday averaged over 12 months. In contrast, the Inshore Award allows for 38 ordinary hours to be worked per week on Monday to Friday for up to 8 hours per day.

[10] The Agreement and the Towage Award provides for employees to work shiftwork with no penalties in compensation for the work. In contrast, the Inshore Award provides for penalties for working shiftwork at clause 19.2.

[11] In their explanation to employees, the Applicant asserts that compensation is included in the hourly rate to compensate employees for the above detriment. While this may have been drawn to the employees’ attention, it is submitted it is not clear how compensation for these matters is included in the hourly rate.

[12] The CFMMEU submits that in the absence of further explanation, the Commission cannot be satisfied that the Applicant took reasonable steps to explain the terms of the Agreement and the effect of those terms to its employees. The CFMMEU submits that therefore the Agreement was not genuinely agreed. Accordingly, it argues the Commission cannot be satisfied that section 180(5) of the Act and by extension section 188 of the Act has been met.

[13] Separately the CFMMEU submits that in the absence of modelling explaining how the Agreement is intended to operate the Commission cannot be satisfied that the Agreement passes the BOOT and, as such, the Commission cannot be satisfied that the requirements of section 186 of the Act are met.

[14] In this matter the CFMMEU also submits that there is a serious question raised with respect to the nature of the Agreement and the stake the three employees voting on the Agreement had in relation to the making of the Agreement. The CFMMEU raises the issue of their moral authority.

[15] The CFMMEU submits that the following timeline should be considered by the Commission when considering the approval of the Agreement:

•  9 October 2020 – Applicant registered as a company;

•  22 October 2020 – Notice of Employee Representational Rights issued;

•  4 November 2020 – Proposed agreement distributed to employees;

•  13 November 2020 – Agreement approved by three employees.

[16] An agreement was entered into with a small group of employees who had been employed by the Applicant for slightly more than one month before voting to approve the Agreement with the potential to cover a large number of employees in a wide range of classifications across at least two industries. Given this, the CFMMEU submits that there is a serious argument that the Commission should reject the approval of the Agreement in reliance upon the broad discretion provided to it under section 188(c) of the Act.

[17] The Applicant opposes the CFMMEU being heard in this matter.

[18] The Applicant submits the CFMMEU had no members involved in the making of the Agreement and the fact that the CFMMEU purports to be concerned about the potential approval of the Agreement is no basis for it to be heard.

[19] Whilst the Commission has the discretion under section 590 of the Act to inform itself as it considers appropriate it is submitted there is nothing in this particular matter that warrants the CFMMEU being heard.

[20] The Applicant submits the CFMMEU should not be heard in this case.

[21] The Applicant has also provided some submissions in response to the objections the CFMMEU identified above.

[22] Having considered the CFMMEU’s submissions urging the Commission to allow it to be heard in this matter there is nothing in my view that has been put forward that is compelling at all in this instance.

[23] The CFMMEU has no right to be heard in this matter and the Commission will not be exercising its discretion to allow it to be heard.

[24] I have had regard for the detailed information provided by the Applicant in the Form F17 – Employer’s declaration in support of the application. This declaration demonstrates the Applicant in this instance went further than most employers would in taking steps to explain the terms of the Agreement and their effect to the employees involved. The Applicant engaged a third party who undertook explanations sessions individually with the employees and as a group on multiple occasions. That explanation was not limited to a comparison between the proposed agreement and its terms and their effect with reference to the two Awards but also involved a comparison with six other agreements already approved for other employers operating in the industries.

[25] It is worth commenting perhaps on the concern the CFMMEU raised about the fact the Agreement was made with a small number of employees who had been employed for a short period of time prior to making the agreement with their employer.

[26] Neither of these facts are matters that the scheme for considering approval of agreements under the Act suggests are inherently problematic.

[27] The particular circumstances of employees and their employer immediately prior to making an agreement will be many and varied and the legislation does not suggest that some particular circumstances should be automatically viewed with suspicion.
[28] In this case I accept that the three employees are a Deckhand and an Engineer who each have extensive industry experience of 15 and 14 years respectively and a Master who has 18 years’ experience in the inshore boating industry.

[29] Consequently, having considered the materials filed by the Applicant I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[30] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 February 2021. The nominal expiry date of the Agreement is 9 February 2025.

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