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Fair Work Commission - Enterprise Agreement |
Last Updated: 12 January 2021
The attached document replaces the document previously issued with the above code on 22 December 2020.
Inserting the Agreement title into the header of the Decision.
Chambers of Deputy President Masson
24 December 2020.
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FAIR WORK COMMISSION
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DECISION
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s.185 - Application for approval of a greenfields agreement
Randstad
Pty Ltd
(AG2020/3517)
RANDSTAD PTY LTD QUEEN’S WHARF PROJECT AGREEMENT
Building, metal and civil construction industries
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DEPUTY PRESIDENT MASSON
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MELBOURNE, 22 DECEMBER 2020
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Application for approval of the Randstad Pty Ltd Queen's Wharf Project Agreement.
Introduction
[1] An application has been made for approval of a Greenfields agreement known as the Randstad Pty Ltd Queen’s Wharf Project Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Randstad Pty Ltd (the Applicant) and is a Greenfields enterprise agreement made under s. 182(4) of the Act.
[2] The Applicant states that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Plumbing Division, Queensland Divisional Branch (CEPU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division, Queensland and Northern Territory Divisional Branch (ETU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to be covered by the Agreement were provided with written notice of the notified negotiation period for the Agreement, which commenced on the 27 March 2020 and ended on the 27 September 2020.
[3] The Applicant filed a statutory declaration in support of the Agreement. The statutory declaration noted the relevant Awards for the purpose of the better off overall test were the Building and Construction General On-Site Award 2010 (‘the Building Award’)[1], Mobile Crane Hiring Award 2010 (‘the Mobile Crane Award’)[2], Electrical, Electronic and Communications Contracting Award 2010 (‘Electrical Award’)[3] and the Plumbing and Fire Sprinklers Award 2010 (‘Fire Sprinklers Award’)[4].
[4] The statutory declaration also identified the steps taken by the Applicant to ensure the Unions had a reasonable opportunity to sign the Agreement. The declaration further identifies why the Approval of the Agreement would be in the public interest, such as Approval would create numerous job opportunities in the covered industries and that the conditions contained in the Agreement are significantly better off than the relevant Awards.
[5] The CEPU and ETU each filed a Form F21C declaration in which they agreed that they were bargaining representatives for the proposed agreement and that they were entitled to represent the industrial interests of a majority of employees who will be covered by the proposed agreement. Both unions stated in their declarations that they were not notified of a 6 month negotiation period and nor were they given a reasonable opportunity to sign the Agreement after the negotiation period ended. Neither the AMWU nor CFMMEU filed Form 21C declarations in response to the application despite invitations from the Commission to do so.
[6] As both the ETU and CEPU indicated opposition to approval of the Agreement in their Form F21C declarations, correspondence was sent by my Chambers to both the ETU and CEPU on 3 December 2020 requesting advice as to whether they wished to be heard in relation to their objections. Various written submissions were subsequently received from the ETU, CEPU and from the Applicant. None of the parties sought to be subsequently heard at a hearing and were content to rely on their submissions.
Submissions and evidence
[7] The Applicant in its submissions outlined the steps it says were taken to notify the unions of the formal commencement of bargaining on 27 March 2020 and the opportunity provided to the unions to sign the Agreement following the expiration of the six month negotiation period on 27 September 2020. Those steps were as follows;
• On 25 February 2020 emails were sent by the Applicant’s representative to union representatives regarding the Applicant’s desire to enter into an agreement that would cover the Queens Wharf Project in Brisbane, seeking their assistance.[5] The union representatives contacted were;
- Mr Paul Dunbar of the CFMMEU;
- Mr Brian Devlin and Mr Rohan Webb of the AMWU;
- Mr Peter Ong of the ETU (at the email address pong@cepuqld.asn.au); and
- Mr Michael Weich of the CEPU (at the email address michael@plumbersunionqld.com)
• Mr Weich of the CEPU responded on 27 February 2020 to the email sent to him on 25 February 2020 advising that the CEPU had been unable to identify any members currently engaged by Randstad Pty Ltd.[6]
• On 26 March 2020 the Applicant’s representative sent further correspondence to above-referred representatives (at the same email addresses) giving notice in accordance with s. 178B of the Act that each of the four unions had been identified as a bargaining representative for the proposed agreement and that the negotiation period for the proposed agreement was 6 months beginning on 27 March 2020.[7]
• On 11 November 2020 the Applicant’s representative sent emails with the proposed agreement attached to officials of each the four relevant unions. The unions were each invited to arrange signing of the proposed agreement by 4.00pm on 17 November 2020.[8]
• Responses to the 11 November 2020 correspondence were received from Mr Stein of the AMWU, Ms Trail of the ETU, Mr Dunbar of the CFMMEU and Ms Fogarty of the CEPU on 17 November 2020 on behalf of their respective organisations, each declining to sign the proposed agreement.[9]
• An email was received by the Applicant’s representative from Ms Pat Rogers, the Industrial Officer for the ETU (Queensland) on 23 October 2020 in which Ms Rogers stated that the email address used by the Applicant in forwarding correspondence to Mr Ong on 25 or 26 March 2020 was an old and incorrect email address and that a thorough search of the ETU’s server had produced no record of the email having been received.[10]
[8] According to the Applicant, the Agreement which the four unions each declined to sign, was based on an existing agreement, the Kone Elevators Pty Ltd Queen’s Wharf Project Agreement[11] (the Kone Agreement). The Applicant submits that the contents of the Agreement is essentially identical to the Kone Agreement which covers the CFMMEU, AMWU, ETU and CEPU. The Applicant further submits that the Agreement is also consistent with numerous other agreements covering employers engaged on the Queens Wharf Project that have been approved by the Commission.
[9] Both the ETU and CEPU submit that the Agreement is incapable of approval as they did not receive written notice of the commencement of the notified negotiation period. Consequently, they submit that the requirements of s 182(4) have not been met by the Applicant and the application should be dismissed. In support of their submissions the ETU and CEPU variously contend as follows;
- The employee organisations to which the Applicant claims to have notified and advised regarding the bargaining period were not properly identified by the Applicant.
- Service of the documents in accordance with Rule 42(f) of the Fair Work Commission Rules 2013 (the FW Rules), which are contended as applicable by the Applicant, were not complied with.
Relevant Legislation
[10] Section 172 of the Act provides, inter alia, for the making of enterprise agreements that are greenfields agreements. These may be made on a single-enterprise or multi-enterprise basis. A single-enterprise agreement that is a greenfields agreement is one that meets the description in s.172(2)(b). That sub-section provides:
“(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(b) with one or more relevant employee organisations if:
(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and
(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.
Note: The expression genuine new enterprise includes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).”
[11] Section 172(4) of the Act describes that which is a greenfield agreement as follows:
“(4) A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.”
[12] Section 178B sets out the requirements for notification of the negotiation period for a proposed single enterprise agreement that is a grenfields agreement and relevantly states as follows;
“178B Notified negotiation period for a proposed single-enterprise agreement that is a greenfields agreement
(1) If a proposed single-enterprise agreement is a greenfields agreement, an employer that is a bargaining representative for the agreement may give written notice:
...............................”
[13] Section 182(3) provides that a greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all the relevant employee organisations for the agreement). However, this subsection does not relate to the making of the Agreement.
[14] The Agreement was made or taken to have been made under s.182(4), a provision added to the Act by the Fair Work Amendment Act 2015 (Cth) (2015Amendment Act). That subsection provides:
“182 When an enterprise agreement is made
.....................
(4) If:
(a) a proposed single-enterprise agreement is a greenfields agreement that has not been made under subsection (3); and
(b) there has been a notified negotiation period for the agreement; and
(c) the notified negotiation period has ended; and
(d) the employer or employers that were bargaining representatives for the agreement (the relevant employer or employers) gave each of the employee organisations that were bargaining representatives for the agreement a reasonable opportunity to sign the agreement; and
(e) the relevant employer or employers apply to the FWC for approval of the agreement;
the agreement is taken to have been made:
(e) by the relevant employer or employers with each of the employee organisations that were bargaining representatives for the agreement; and
(f) when the application is made to the FWC for approval of the agreement.
Note: See also section 185A (material that must accompany an application).”
[15] In relation to approval of an agreement made pursuant to s. 182(4) of the Act the following provisions relevantly apply in respect of the approval decision;
“201 Approval decision to note certain matters
........................
(2A) If:
(a) an agreement is made under subsection 182(4) (which deals with a single-enterprise agreement that is a greenfields agreement); and
(b) the FWC approves the agreement;
the FWC must note in its decision to approve the agreement that the agreement covers each employee organisation that was a bargaining representative for the agreement.
................................”
Consideration
[16] It is not contested that the requirements of s. 172(b) are met in that the Agreement relates to a genuine new enterprise that the Applicant is establishing or proposes to establish and that no employees have been engaged yet who would be covered by the Agreement. Nor have any other statutory requirements necessary for approval of the Agreement been challenged save for the following two grounds of objection raised by the ETU and CEPU. Firstly, that neither organisation received notice of the commencement of the notified negotiation period for the Agreement (s. 182(4)(b)) and secondly that they were not afforded a reasonable opportunity to sign the Agreement (s. 182(4)(d)).
[17] It is convenient to deal with the second ground of objection first, that being the bargaining representatives were not afforded a reasonable opportunity to sign the Agreement. While raised in their Form F21C declarations, the CEPU and ETU did not elaborate on this ground of objection in any submissions subsequently filed.
[18] The claim that the unions were not afforded a reasonable opportunity to sign the Agreement is devoid of merit. It was not contested that correspondence was sent to and received by each of the four relevant organisations on 11 November 2020 inviting them to sign the Agreement by 4.00pm 17 November 2020. Each of the four organisations responded on 17 November 2020 declining to sign the Agreement. Significantly, the Agreement was in almost identical terms to other agreements that had been entered into for the Queens Wharf Project which had been approved by the Commissions and to which each of the four organisations were variously covered. No request for an extension of time in which to consider signing the Agreement was made by any of the four organisations. In the circumstances I am satisfied that the ETU, CEPU, AMWU and CFMMEU were afforded a reasonable opportunity to sign the Agreement
[19] Turning now to the first ground of objection. As I comprehend, the gravamen of the ETU and CEPU’s objection is that the Applicant’s notification to the respective organisations failed to properly identify the correct registered entities and as a consequence it cannot be found that they (the ETU or CEPU) were notified of the negotiation period. Furthermore, the ETU contend that the notification was not sent to its published organisational email address. While not strongly pressed in submissions or supported by any evidence the ETU also appear to claim that Mr Ong did not receive an email from the Applicant on 26 March 2020 as the Applicant had used on old and incorrect email address.
[20] Before turning to consider whether the Applicant has notified the union bargaining representatives pursuant to s 182(4)(b) it is necessary to consider the means by which notice of commencement of the notified negotiation period is required to be made. Both the Applicant and ETU referred in their submissions to the FW Rules which relevantly state that service of documents may be affected by emailing the document to an email address;
- (i) currently published by the person who is being served as his, her or its email address; or
- (ii) advised by the person who is being served as his, her or its email address in response to a request for an email address that was made immediately before transmission of the document; or
- (iii) appearing as the email address of the person who is being served on a document lodged with the Commission by that person in the same matter.
[21] Part 7 of the FW Rules is concerned with the service of documents that are filed in the Commission. The present matter before me concerns a controversy over notification of commencement of a notified negotiation period and is not in respect of service of documents filed in the Commission. In these circumstances I am not persuaded that Rule 42(f) applies.
[22] Section 178B simply requires notification in writing to the relevant employee organisation of the commencement of a notified negotiation period. It is well established that “in writing” may include by electronic means, such as by email. There is nothing in the words of s. 178B Act that indicate an intention to confine valid notifications to only where a published email address of the union in question has been used as opposed to the email address of an appropriate official of the union. In my view it is sufficient for the purposes of compliance with s. 178B of the Act for notification of the of the commencement of a notified negotiation period to be provided by email to an authorised officer of the relevant union.
[23] Dealing firstly with the CEPU’s apparent objection that the notification to Mr Weich on 26 March 2020 wrongly identified the union as “Plumbers Union Queensland” rather than its correct legal identity, that being the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Plumbing Division, Queensland Divisional Branch (CEPU). There was no suggestion in the Applicant’s correspondence that it was seeking to enter into an agreement with an unregistered or state registered organisation. The correspondence made clear that the Applicant was seeking to enter into a “single enterprise agreement that is a greenfields agreement” and that notice was being given pursuant to s 178B of the Act of the commencement of the notified negotiation period. In providing the notice the Applicant used the shorthand description of the union in the address of the union, that being the “Plumbers Union Qld” which I note is also the domain name in the email address of Mr Wiech and other staff of the CEPU.
[24] I am satisfied that Mr Weich, and by extension the federally registered organisation of which he was an authorised official, was notified of the commencement of the notified negotiation period on 26 March 2020 in respect of the Agreement and am further satisfied that in respect of the CEPU the Applicant has complied with the requirements of s. 178B and s 182(4)(b).
[25] Turning now to the notification of the ETU. The Applicant sent an email with the notification of commencement of the notified negotiation period to the State Secretary of the ETU, Mr Peter Ong at the email address pong@cepuqld.asn.au on 26 March 2020. The Applicant furnished copies of the email and attached letter with its submissions. For the same reasons outlined above in respect of the CEPU I am satisfied that identification of the union was done in a shorthand manner and would not have served to confuse the recipient of the correspondence. The Applicant submits that in sending the email to Mr Ong it used the email address of Mr Ong that it had previously routinely used, had not been advised that his email address had changed and there was no email ‘bounce back’ that suggested the email address was no longer in use. The Applicants submits that it received the first bounce back message in respect of the above-referred email address on 21 October 2020.
[26] The ETU in correspondence to the Applicant dated 10 December 2020, which was copied to the Commission, rejected various assertions of the Applicant as to the email to Mr Ong having been received by the union. Tellingly however, the ETU provided no material to the Commission that shed light on when Mr Ong’s email address may have changed, what arrangements were put in place by the union to allow for a transition to his new email address and what steps were taken by the union to check its records in respect of the email sent by the Applicant to Mr Ong.
[27] The ETU also outlined in its correspondence to the Applicant on 10 December 2020 that proper service had in any event not been affected as the Applicant had not sent notification of commencement of the notified negotiation period to the union’s published email address, that being info@etu.org.au. It would have been of assistance to the Commission in considering this point to understand how regularly the ETU’s authorised officials received emails directly from employers and treated such emails as not properly received by the union. I note that when the ETU was sent correspondence on 11 November 2020 by the Applicant inviting the union to sign the Agreement, the emails were sent directly to Mr Ong (at his new union email address) and Ms Rogers at her union email address. The ETU responded to this email on 17 November 2020.
[28] On the material before me I am satisfied that the Applicant sent an email to Mr Ong on 26 March 2020. I am satisfied that Mr Ong, and by extension the federally registered organisation of which he was an authorised official, was notified of the commencement of the notified negotiation period on 26 March 2020 in respect of the Agreement and am further satisfied that in respect of the ETU the Applicant has complied with the requirements of s. 178B and s 182(4)(b).
Conclusion
[29] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act and has been made under s. 182(4) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met including that, considered on an overall basis, the Agreement provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.
[30] In accordance with s.187(5)(a) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Plumbing Division, Queensland Divisional Branch (CEPU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division, Queensland and Northern Territory Divisional Branch (ETU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.
[31] Pursuant to s. 201(2A) of the Act I note that the Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Plumbing Division, Queensland Divisional Branch (CEPU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division, Queensland and Northern Territory Divisional Branch (ETU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).
[32] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 December 2020. The nominal expiry date of the Agreement is 1 November 2022.
DEPUTY
PRESIDENT
<AE509916
PR725722>
[5] Applicant Submissions, Annexure A
[6] Ibid
[7] Applicant Submissions, Annexure B
[8] Applicants Submissions, Annexure C
[9] Ibid
[10] Applicant’s Submissions, Annexure E
[11] AE506195
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