Symal Solutions Pty Ltd T/A Symal Solutions Pty Ltd

[2023] FWC 286

[2023] FWC 286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Symal Solutions Pty Ltd T/A Symal Solutions Pty Ltd

(AG2022/4902)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 2 FEBRUARY 2023

Application for approval of the Symal Solutions Pty Ltd - NSW ACT and QLD Enterprise Agreement 2022-2026 - standing of unions to be heard in relation to application

1. Symal Solutions Pty Ltd (Symal) has applied pursuant to s.185 of the Fair Work Act 2009 (Cth) for approval of the Symal Solutions Pty Ltd - NSW, ACT and QLD Enterprise Agreement 2022-2026 (the Agreement). Symal is in the building, metal and civil construction industries.[1]

1. The CFMMEU seeks to be heard in relation to the application, and Symal opposes the request being granted.

1. The CFMMEU and Symal have consented to the issue of whether the CFMMEU should be heard being determined based on the submissions and evidence they each filed.

Submissions

1. The CFMMEU requests to be heard by the exercise of power under s.590(1) of the Act. It also makes its request as a matter of procedural fairness based on both a direct and indirect interest in the application.

1. In relation to the request under s.590 of the Act, the CFMMEU submits that:

·   it represents the industrial interests of employees in the building, metal and civil construction industries, and has specific experience with the workforce of related entities of Symal;

·   it has knowledge and experience stemming from a history of coverage and membership in work covered by the Agreement, which has been identified as a factor favouring a union being heard under s.590;

·   a union in these circumstances has been shown to be of great assistance in ensuring the requisite level of scrutiny is applied to the pre-approval process. It accepts that some Commission Members have taken a different approach to s.590;

·   the issues in, and merits of, a matter may be more effectively ventilated through a perspective independent of the party seeking approval;

·   allowing the CFMMEU to be heard avoids the situation that has developed in other instances where a union is not permitted to be heard at first instance but is, by reason of its eligibility, able to appeal against a decision approving an agreement;

·   the CFMMEU could assist the Commission as a contradictor; and

·   it has concerns that the ballot did not comply with s.181(2) of the Act and concerns regarding the Notice of Employee Representational Rights (NERR).

1. Symal opposes the request to be heard under s.590 on the basis that (in summary):

·   the CFMMEU was not a bargaining agent for the Agreement and it does not replace any existing agreement conferring rights on it. At best the CFMMEU has an indirect and inconsequential interest in the application;

·   the CFMMEU has an onus to demonstrate that s.590 is enlivened and the Commission will benefit from informing itself in a particular manner;

·   there is no sound basis enlivening the jurisdiction conferred upon the Commission by s.590 of the Act and the Commission will not be assisted by any submission a non-party might make regarding approval of the Agreement and the better off overall test (BOOT). It is not enough that a union might have a discrete interest in a particular matter arising under the Agreement, the union must satisfy the Commission that the particular interest interacts with, or impacts upon, the proper assessment of the BOOT;

·   merely because the CFMMEU might have standing to appeal a decision does not mean that a request to be heard ought to be granted in the first instance;

·   Symal accepts the power under s.590 is broad and that the Commission can exercise a discretion to invite a person to be heard, within limits, absent a strict interest and/or established right to be heard; and

·   notwithstanding the broad power in s.590, there is no clear basis here for the Commission to be satisfied that anything the union could ventilate might assist the Commission in its statutory approval task.

Consideration

1. Section 590 of the Act provides that the Commission may, except as provided by the Act, inform itself in relation to any matter before it in such manner as it considers appropriate. It confers a broad power on the Commission to inform itself by means including (but not limited to) by inviting oral or written submissions from a person or organisation; by taking evidence under oath or affirmation; and by requiring a person to provide copies of documents or records.

1. It empowers the Commission to choose to hear from an employee organisation about the approval of an agreement even though the employee organisation may not otherwise have a right to be heard.[2]

1. The Commission has an important role in dealing with applications for approval of enterprise agreements, as observed by the Federal Court:

“…the Commission’s role in relation to the scrutiny of agreements as at the time of approval is immense. The legislature has invested in the Commission great responsibility in ensuring that the process of making the agreement has been satisfactory and that its content complies with the detailed requirements of the Act.”[3]

1. The CFMMEU has a long history of representation in the building and construction industry, and extensive knowledge and experience of agreement-making in the industry. It is covered by many enterprise agreements in the industry, including with related entities of Symal. It is highly familiar with the industrial instruments, terms and conditions and ways of working in the industry.

1. Whilst not having been provided access to all the material filed by Symal supporting approval of the Agreement, on the limited material available to it at this point, the CFMMEU has identified potential issues in relation to the NERR requirement and the arrangements for a ballot. The administrative analysis of the application for approval conducted by Commission staff has identified additional issues in relation to the Agreement.

1. In these circumstances, I am satisfied that the CFMMEU may provide relevant information to assist my deliberations as to whether the requirements for approval of an enterprise agreement have been met, including in relation to the NERR and the ballot arrangements. Granting permission to the CFMMEU to make submissions, lead any evidence that it has and to cross-examine witnesses, will assist the Commission to properly inform itself in relation to the requirements for approval of the Agreement.

1. The CFMMEU’s involvement as a contradictor will also assist in dealing with the concerns that have been identified with appropriate rigour:

“Registered organisations with a legitimate interest in the industry and occupations covered by the Agreement may assist in the resolution of these issues of concern. In this way, a process involving open, diligent and comprehensive scrutiny should provide for the correct outcome, and also enhance broader confidence in the Commission’s enterprise agreement approval role.”[4]

1. I am also satisfied that the CFMMEU can provide a perspective independent of the Applicant for approval of the Agreement, particularly in circumstances where no employee bargaining representative was involved in its making.[5]

1. In the particular circumstances of this matter, I am therefore satisfied that the CFMMEU has established a basis upon which it should be invited to be heard under s.590 of the Act.

1. Having so found, it is unnecessary to determine the separate ground upon which the CFMMEU’s request to be heard was founded.

1. The Commission will now proceed to consider the application. A Mention will be listed shortly to deal with directions for the hearing of the application for approval of the Agreement.

DEPUTY PRESIDENT

[1] Form F16.

[2] CFMEU v Collinsville Coal Operations Pty Ltd[2014] FWCFB 7940 at [72].

[3] Teys Australia Beenleigh Pty Ltd v AMIEU (No 2) [2016] FCA 2 at [74].

[4] Inco Ships Pty Ltd [2016] FWC 1637 at [25].

[5] Form F16.

Printed by authority of the Commonwealth Government Printer

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