Windhoist Australia Pty Ltd v Construction, Forestry, Mining and Energy Union
[2012] FWA 6330
•26 JULY 2012
[2012] FWA 6330 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Windhoist Australia Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(AG2012/1583)
DEPUTY PRESIDENT MCCARTHY | PERTH, 26 JULY 2012 |
Application for approval of the Windhoist Australia Pty Ltd Enterprise Bargaining Agreement 2012 - whether submissions by employee organisation should be allowed.
Background
[1] On10 May 2012, Windhoist Australia Pty Ltd (Windhoist) lodged with Fair Work Australia (FWA) an application for approval of the Windhoist Australia Pty Ltd Enterprise Bargaining Agreement 2012 (the Agreement).
[2] On 30 May 2012, the Construction, Forestry, Mining and Energy Union (the CFMEU) emailed my Chambers advising that they hadsome concerns as to whether the Agreement complied with all the legislative requirements and would seek to be heard when I considered the application. I also advised Windhoist’s representatives of the CFMEU’s interest.
[3] I held a conference on 5 June 2012. Windhoist challenged the CFMEU’s standing and asserted that I should not accept any submissions from the CFMEU. As a consequence, I issued Directions requiring submissions to be lodged by the CFMEU on 13 June 2012 and for responses by Windhoist by 20 June 2012 to deal with whether I should accept submissions from the CFMEU.
[4] On 11 July 2012, I also caused a request to the CFMEU to provide details of any members they had that were employed by Windhoist. The CFMEU provided those details, it being apparent that there was at least one member of the CFMEU that was employed by Windhoist. They could not provide me with an exact date that their member had been employed by Windhoist but pointed out that Windhoist had included that employee’s name in a list of employees that was employed by them and covered by the Agreement when it was made in a document provided to me on 5 June 2012.
[5] I was provided with copies of Appointment of Bargaining Agent Forms for 11 employees (the BA Notices), being the 11 employees who were employed and involved in the making of the Agreement. Ten of the BA Notices appointed Mr Ivor Hatton as a bargaining representative and one employee appointed another person. It is obvious that both Mr Hatton and the other person appointed are employees of Windhoist. The employee that is and was at the time a member of the CFMEU appointed Mr Hatton as a bargaining representative.
Submissions
The CFMEU
[6] The reasons put forward by the CFMEU are that:
1. The CFMEU is Australia’s main trade union in the construction industry with over 120,000 members nationally.
2. The CFMEU has an intimate and deep knowledge of the construction industry and the conditions and practices found therein.
3. Amongst those workers that the CFMEU is eligible to represent are classifications found at clause 40 of the Agreement.
4. The CFMEU has a member, or members, currently employed by Windhoist.
5. The CFMEU has, as a core function, a specific interest in improving, protecting and fostering the best interests of members, those eligible to be members and the construction industry in general.
6. The CFMEU has a legitimate interest in ensuring that FWA acts within its jurisdiction when considering matters that affect the construction industry and CFMEU members.
7. The CFMEU has a major interest and long experienced representational role in the construction industry.
8. The CFMEU has a legitimate interest in ensuring that FWA acts within its jurisdiction.
9. The CFMEU also asserted that there were unlawful and discriminatory terms in the Agreement and they wished to bring these matters to the attention of FWA.
10. The CFMEU also stated that if the Agreement was approved in its current form, then it would be appealed and they would be considered to be a “person aggrieved” and be granted permission to appeal. They submitted that it would be practical for the CFMEU to make known its objections at this stage rather than through an appeal process.
[7] Essentially, the CFMEU asserts that because of their involvement and representative role in the construction industry that they have a right to participate in agreement approval proceedings.
Windhoist
[8] Windhoist argued that that there is no proper basis or standing for the CFMEU’s intervention. They stated that each of Winhoist’s 11 employees employed at the time involved in the making of the Agreement appointed one of two fellow employees as their bargaining representatives and therefore, the CFMEU was not a bargaining representative in respect of the Agreement.
The Legislation
[9] The Fair Work Act 2009 (the FW Act) provides for the making and approval of single enterprise agreements. In a case such as this Agreement, the agreement is made when a majority of those employees who cast a valid vote approve the agreement. 1 Once an agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.2
[10] A bargaining representative includes the employer. An employee organisation is also a bargaining representative if an employee who will be covered by the agreement is a member, providing the employee has not revoked the organisation’s status or has appointed another person in writing as his or her bargaining representative and has not revoked that appointment. 3
[11] Other than for greenfield agreements, single enterprise agreements are made between the employee and the employees of that employer. A union cannot make an agreement. Rather, the FW Act provides for representation rights for unions in the negotiations for an agreement as a bargaining representative and potentially in seeking approval of an agreement made. A union can be covered by an agreement if it gives written notice stating that the organisation wants the enterprise agreement to cover it. 4
[12] The FW Act provides that FWA has the functions conferred by the FW Act in relation to the enterprise agreements 5 but there is no specific provision as to how FWA must deal with agreement approval applications in order to be satisfied with the meeting of the requirements of ss.186 and 187. The general obligations of s.577 require that FWA must perform its functions in a manner that is:
(a) fair and just;
(b) quick, informal and avoids unnecessary technicalities;
(c) open and transparent; and
(d) promotes harmonious and cooperative workplace relations. 6
[13] FWA must also take into account:
(a) the objects of the FW Act;
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the workforce by helping to prevent and eliminate discrimination.
[14] There is no automatic right for a union to become involved in the procedures of FWA in considering the approval application. If a union is a bargaining representative in respect of the agreement, involvement in approval proceedings is routinely allowed. However here, there is no evidence of the union being a bargaining representative, but rather, evidence of the union not being a bargaining representative.
Conclusion
[15] There are four broad aspects that the CFMEU has submitted regarding their participation. Firstly, they assert that their presence and role in the construction industry gives them such a right. I do not consider the CFMEU has a right to participate in the proceedings merely because of its role and experience in the construction industry. If the legislation intended there to be that right, it would have provided as much.
[16] Secondly, the CFMEU makes a reference to a potential discriminatory or unlawful term in the Agreement. However, considerations of potential discriminatory or unlawful terms of an agreement are always examined as considerations made by FWA. I do not consider this ground warrants allowing the CFMEU to provide submissions regarding that potential in the Agreement.
[17] Thirdly, the CFMEU then asserts that without its participation then FWA may not exercise its jurisdiction properly. I do not consider this ground warrants allowing the CFMEU to provide submissions regarding the Agreement’s approval.
[18] Fourthly, the CFMEU infers that if I don’t agree to their participation, they will appeal such a decision. With respect to the CFMEU, such a proposition is not one that influences me.
[19] Here, the Agreement itself does not seem complex, its terms and conditions are relatively straight forward and it bears a good resemblance to many other agreements that I have dealt with.
[20] Here also, the CFMEU has only one member that they could identify for me that was employed at the time the Agreement was made. That employee and member, however, signed a written authorisation appointing a person as a bargaining representative. It is therefore apparent that the CFMEU is not a bargaining representative in respect of this Agreement.
[21] I will not accept submissions from the CFMEU regarding the approval process and will proceed to deal with the application for approval without their involvement.
DEPUTY PRESIDENT
1 s.182(1)
2 s.185(1)
3 s.176
4 s.183(1)
5 s.576
6 s.577
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