1
Fair Work Act 2009
s.604 - Appeal of decisions
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
Australian Manufacturing Workers' Union
v
Sustaining Works Pty Limited
(C2015/3717)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER ROBERTS SYDNEY, 13 AUGUST 2015
Appeal against decision [2015] FWCA 2389 of Commissioner Simpson at Brisbane on 7 April
2015 in matter number AG2015/720.
Introduction
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union and the Australian Manufacturing Workers’ Union (unions) have
filed a notice of appeal under s.604 of the Fair Work Act 2009 (FW Act) in which they seek
permission to appeal and appeal a decision of Commissioner Simpson issued on 7 April 20151
(Decision). In the Decision the Commissioner approved an enterprise agreement, the
Sustaining Works Pty Limited Queensland Gas Field Enterprise Agreement 20152
(Agreement), after being satisfied that the approval requirements in ss.186, 187 and 188 of the
FW Act had been met. The unions were not aware of the existence of the Agreement prior to
its approval and accordingly did not seek to make submissions before the Commission
opposing its approval. In their appeal the unions contend that the Commissioner erred in
concluding that the “fairly chosen” requirement was satisfied.
[2] The “fairly chosen” approval requirement is contained in subsections 186(3) and (3A)
of the FW Act, which provide:
Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC must be satisfied that the group of employees covered by the agreement
was fairly chosen.
1 [2015] FWCA 2389
2 AE413419
[2015] FWCFB 4422
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 4422
2
(3A) If the agreement does not cover all of the employees of the employer or
employers covered by the agreement, the FWC must, in deciding whether the group of
employees covered was fairly chosen, take into account whether the group is
geographically, operationally or organisationally distinct.
Factual background
[3] The relevant facts and circumstances of the matter require some description. The
unions sought the admission of new evidence in the appeal, in the form of two affidavits
affirmed by Mr Peter Ong, an organiser for the CEPU, on 15 May 2015 and 2 June 2015
respectively. This was opposed by Sustaining Works Pty Limited (Sustaining Works), but in
the event that Mr Ong’s evidence was admitted it sought the admission of two affidavits in
reply affirmed by Mr Martyn Paul Raymont, an Operations Manager employed by Leighton
Contractors Pty Limited (Leighton), on 28 May 2015 and 3 June 2015 respectively. We have
decided to admit the affidavits of Mr Ong and Mr Raymont in the appeal, because the unions,
not being aware of the matter, did not have the opportunity to adduce any evidence before the
Commissioner, and because we consider that the factual material contained in the affidavits
provides considerable assistance to a proper understanding of the factual context. The short
factual summary which follows is based to a large degree upon the contents of these
affidavits.
[4] Sustaining Works is a wholly owned subsidiary of Leighton. Leighton is a major civil
construction company which has been significantly involved in the construction of major gas
projects in Queensland. The Leighton Contractors Pty Ltd APLNG Upstream Project Union
Greenfields Agreement 20123 (APLNG Agreement) covered work performed by Leighton’s
employees on these major gas projects. Sustaining Works was incorporated in late November
2014. The evidence of Mr Raymont was that Sustaining Works was formed to allow Leighton
to competitively bid for smaller scale “sustaining operations work needed and staged to
replenish the CSG [Coal Seam Gas] supply as the early wells reached exhaustion”. The
APLNG Agreement did not cover this work.
[5] Leighton was successful in late 2014 in obtaining work across three field compression
stations in the Surat Basin, including the Lauren Field Compressor Station. Leighton needed
an enterprise agreement to cover all that work, and Sustaining Works commenced
negotiations for the Agreement in February 2015 for that purpose.
[6] The Agreement was made on 27 March 2015. Clause 2.3 of the Agreement provides:
“2.3 Application of Agreement
This Agreement will apply to the Employer and the Employees engaged in
classifications contained in this Agreement on the construction, installation,
operations, maintenance and/or miscellaneous services works of coal seam gas
pipelines and associated facilities; process facilities and compressor stations including
civil, mechanical, electrical, or any minor construction work, or any work to operate,
inspect, repair, replace, renovate, rehabilitate, refurbish, revamp, service, maintain,
install, overhaul, upgrade and/or upkeep all or any Gas Wells, Central Processing
Plants, Field Compression Stations, trunklines and any other infrastructure above or
3 AE892943
[2015] FWCFB 4422
3
below ground associated with gas gathering facilities of coal seam gas in or around
the Surat Basin Queensland where the Employer has a contract with the owners of the
assets to perform such work for the Client in the State of Queensland provided that it
shall not apply to the excluded personnel.”
[7] The “excluded personnel” referred to at the end of clause 2.3 are identified in clause
2.4 as being management and supervisory personnel, engineers/surveyors and employees
engaged in the offsite manufacturing or fabrication of goods, materials and equipment. The
classifications in the Agreement are set out in clause 5.1. There is an entry classification, and
above that are five levels which encompass the following job functions and descriptions:
Labourer;
Survey Instrument Hand;
Traffic Controller;
Chainperson;
Storeperson;
Dogman;
Rigger;
Scaffolder;
Excavator Operator;
Sideboom Operator;
Grader Operator;
Front End Loader Operator;
Backhoe Operator;
Non Slewing Mobile Crane Operator;
Carpenter;
Electrician;
Plumber;
Painter;
Boilermaker;
Mechanical Fitter;
Mechanic; and
Special Class Tradespersons.
[8] An application for approval of the Agreement was lodged in the Commission on the
same day that the Agreement was made. The statutory declaration accompanying that
application disclosed that as of that date, Sustaining Works only employed five people who
were covered by the Agreement. All five of these employees were concreters employed in the
Surat Basin in Queensland.
[9] There was a meeting between representatives of Leighton and the unions about the
Agreement on 8 April 2015. One of the representatives of Leighton explained the reason why
the Agreement was made in the following terms:
“The client has told us we have to reduce our cost by 30 percent. We have decided to
reduce labour costs to assist with this. Sustaining Works has been created and has an
Agreement which reflects how we are going to reduce our costs”.
[2015] FWCFB 4422
4
[10] When the same representative was asked why there was no attempt to try and
negotiate an agreement with the unions to achieve what was needed, she replied: “Because
you would have told me to get fucked”.
[11] At the time of the appeal hearing, Sustaining Works only employed two persons, who
were concreters, who were covered by the Agreement. They were only expected to be
employed for a few further weeks. These employees’ labour was supplied by Sustaining
Works to Leighton, Leighton being the entity which had contracted to carry out the relevant
project work. Another separate labour hire business, Protech Working Recruitment Pty Ltd
(Protech), has been engaged by Leighton to supply labour for this work and, although this
business is not covered by the Agreement, the labour it has supplied has been paid in
accordance with the terms of the Agreement. In excess of 100 employees were being supplied
by Protech in this manner at the time of the hearing.
Submissions
Unions’ submissions
[12] As earlier stated, the basis of the unions’ appeal was that the Commissioner erred in
being satisfied under s.186(3) of the FW Act that the group of employees covered by the
Agreement was fairly chosen. In support of this proposition the unions submitted:
(1) The selection of the group covered by the Agreement was unfair because it
undermined collective bargaining in a manner which was not compatible with
Part 2-4 of the FW Act and was contrary to the purpose and policy of the FW
Act and the objects of the FW Act. To the extent that this proposition was
inconsistent with the judgment of the Federal Court Full Court in Construction,
Forestry, Mining and Energy Union v John Holland Pty Ltd4, it was
respectfully submitted that this decision was wrong and should not be
followed.
(2) In circumstances where the Agreement was negotiated and made with five
concreters, there could not be satisfaction that the selection of a group of
employees encompassing the broad range of job functions set out in the
classification structure was fair. The selection of such a broad group at a time
when Sustaining Works only engaged the five concreters meant that future
employees were deprived of the right to collectively bargain.
(3) The Full Court’s decision in CFMEU v John Holland acknowledged that in
assessing whether the fairly chosen requirement was satisfied, it was necessary
to have regard to the business rationale for the scope of the proposed
agreement and deal with any possibility of unfair exploitation. In this respect,
the evidence disclosed that at the time the Agreement was made Sustaining
Works knew that it had been awarded a contract for a substantial piece of
construction work and would need more employees. The Agreement contained
terms and conditions substantially below the “market rates” for gas projects
established by agreements entered into by Leighton and other companies - in
particular the APLNG Agreement. This was evidence, the unions submitted,
4 [2015] FCAFC 16
[2015] FWCFB 4422
5
that the reason for the extended coverage clause was to obviate the need to
bargain with the entire workforce or to bargain with relevant unions for a
greenfields agreement and thereby to undercut the established market rates.
[13] The unions submitted that permission to appeal should be granted because the appeal
raised important issues of principle which were likely to be directly relevant to future
applications for approval of enterprise agreements and to the scheme of bargaining, and
because the Decision was attended by serious jurisdictional error.
[14] The unions sought that the Decision be quashed, and that the application for approval
of the Agreement be reheard and dismissed.
Sustaining Works’ submissions
[15] Sustaining Works submitted firstly that the unions did not have standing to bring the
appeal because neither was a “person who is aggrieved” by the Decision as required by
s.604(1). Sustaining Works further submitted that the appeal was not in the public interest and
permission to appeal should not be granted because the issues raised by the appeal had been
dealt with by the Federal Court Full Court in CFMEU v John Holland.
[16] In the event that permission to appeal was granted, it was submitted that the appeal
should be dismissed because there was no error in the Commissioner’s conclusion that the
“fairly chosen” requirement in s.186(3) was satisfied. In determining whether a group of
employees was fairly chosen, whether the Agreement undermined collective bargaining was
not a relevant consideration and in any event the Agreement did not undermine collective
bargaining. The FW Act enabled employees who were employed at the time an enterprise
agreement was made, even if few in number, to agree to terms and conditions of employment
that would bind future employees employed under the terms of that agreement, and did not
prevent employees making an agreement which covered classifications other than their own.
It was incorrect to find that as the Agreement was made with a small number of employees, it
improperly denied future employees an opportunity to bargain, since the deprivation of an
opportunity to bargain arose when any new employee was engaged during the term of an
agreement. These propositions, it was submitted, were firmly established in CFMEU v John
Holland.
[17] Finally, Sustaining Works contended that the proposition that the Agreement provided
for rates below the established market rates for gas projects was an irrelevant consideration
provided that the better off overall test in s.193 was satisfied. In any event, it was submitted,
the work covered by the Agreement was not in the same labour market as major gas projects,
being work which was more of a “rats and mice” nature.
Consideration
Standing to bring the appeal
[18] Section 604 of the FW Act provides that a “person who is aggrieved by a decision”
may appeal the decision by applying to the Commission. In CEPU and AMWU v Main People
Pty Ltd5 a Full Bench of the Commission considered the issue of standing in circumstances
5 [2014] FWCFB 8429
[2015] FWCFB 4422
6
where the appellant unions sought to appeal the approval of an enterprise agreement. In that
appeal neither union had been a bargaining representative for the agreement and there was no
evidence that any employees who voted to approve the agreement were members of either
union or had asked the unions to represent their interests in relation to the Agreement. The
Full Bench determined:
“[7] The appellants have the right to represent employees under the terms of the
Agreement. Moreover, given the nature of the respondent's business, and the industry
within which it operates, we are satisfied that it is likely that some members of the
appellants will be employed by the respondent in the future, in classifications covered
by the Agreement. In the circumstances of this case we consider that this gives the
appellants an interest in the decision to approve the Agreement beyond that of an
ordinary member of the public. Accordingly, we are satisfied that the appellants have
standing to appeal the decision to approve the Agreement.”
[19] We consider that this reasoning and conclusion are applicable to this appeal. Although
there is no evidence that the employees who made the Agreement were members of the
unions, and the unions were not bargaining representatives for the Agreement, we consider
that the unions have the requisite interest in the decision to approve the Agreement in that
they have extensive coverage in the gas industry and it is likely, to the extent that Sustaining
Works employs persons under the Agreement in the future, that some will be members of the
unions. We therefore reject the challenge to the unions’ standing to bring the appeal.
Fairly chosen issue
[20] We consider that the first two of the unions’ submissions, earlier identified, may be
determined by reference to the Federal Court Full Court decision in CFMEU v John Holland.
The proposition that an enterprise agreement which is made by an employer with a small
group of employees but is drafted to apply to a much larger group or class of employees does
not comply with the “fairly chosen” requirement in s.186(3) because it undermines collective
bargaining and is contrary to the policy, purpose and objects of the FW Act was firmly
rejected in CFMEU v John Holland. Buchanan J (with whom Besanko and Barker JJ
relevantly agreed) said in relation to this proposition:
“[66] The second error found by the primary judge is crystallised in the following
passages in the Full Bench decision:
[30] ... In this case three employees on one site have bargained and agreed on
an agreement with potentially very wide application to other employees who
have not engaged in bargaining under Part 2-4 of the Act and will not be given
the opportunity to bargain. ...
...
[34] ... We also consider that the operation of the Agreement, as made with the
three employees, would undermine collective bargaining by other employees in
a manner not compatible with the objects of Part 2-4, ...
[67] Although the Full Bench was directed by s 578(a) to take into account the objects
of Part 2-4 (as stated in s 171) it is far from clear how the Full Bench was able to
conclude that an agreement made with three employees could “undermine” collective
bargaining, or that it was relevant to state any conclusion in such broad terms.
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s171.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/index.html#p4
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/index.html#p2
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s578.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/index.html#p4
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/index.html#p2
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/index.html#p4
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/index.html#p2
[2015] FWCFB 4422
7
[68] It is not correct, with respect, to say (or suggest or infer) as the Full Bench did in
[30], that there were in fact other employees who had been denied a chance to bargain.
The “other employees” referred to were potential (and unknown) possible future
employees who would never have a chance to bargain unless there was no agreement
in place when they were engaged. Deprivation of that opportunity would arise in the
case of any employee engaged during the term of an agreement.
[69] It should be noted that the statutory objective in s 171(a) (which I set out earlier)
refers to “collective bargaining in good faith”, but it is apparent that this statutory
objective, and the reference in s 171(b) to “good faith bargaining”, must be understood
in the overall context set by Part 2-4 of the FW Act.
[70] Neither “collective bargaining” nor “good faith” is defined by the FW Act. There
are, however, a number of procedural directions and discretions in the FW Act which
concern “good faith bargaining requirements” (see s 228 and following). They include
facilities for bargaining representatives to seek bargaining orders, majority support
determinations and scope orders. None of those procedures was relevant to the present
case.
[71] It has not been suggested that it was impermissible for three employees to be
asked to make an agreement or vote to do so. The FW Act permits such an agreement
to be made and requires that it be approved if the statutory tests are met. Unless the
proposed agreement failed to meet a relevant statutory test there could be no basis for
introducing a further, more general, requirement of the kind adopted by the Full
Bench.
[72] In my respectful view, the criticism expressed by the Full Bench in [30] and [34]
of its decision which I set out earlier was misplaced. The “employees” to whom the
Full Bench referred were future employees. It was not to the point that an agreement
was made before some employees were engaged: that was a feature of the process. It
would be the inevitable result also of any greenfields agreement when no employee
covered by the agreement would have an opportunity to vote to accept its terms…”
[21] In his judgment Besanko J added the following observation:
“[3] Secondly, I think the concept of collective bargaining will have quite a limited role
in determining whether the group of employees covered by the agreement was fairly
chosen. It is true that enterprise-level collective bargaining is referred to in the object
of the Act (s 3(f)), and that s 578(a) requires the Fair Work Commission to take into
account the objects of the Act in performing functions or exercising powers in relation
to a matter under the Act. Furthermore, the special expertise of the Fair Work
Commission must be acknowledged. Nevertheless, it was not argued by the appellant
that an agreement voted on by employees falling within the particular job
classifications could not cover other job classifications. To apply a criterion of
collective bargaining in those circumstances involves a comparison between the
number of employees who voted on the agreement, and the number who might be
covered by the agreement. Reasonable minds not only might differ but are likely to
differ as to when the comparison is such that collective bargaining is engaged as a
relevant consideration under s 186(3). That suggests, to my mind, that if the concept of
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s186.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s578.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s3.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s171.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s171.html
[2015] FWCFB 4422
8
collective bargaining has a role in the determination of the issue posed by s 186(3) of
the Act, it is quite a limited one.”
[22] The passage from the judgment of Buchanan J quoted above (at [68] and [72] in
particular) also stated a firm rejection of the propositions advanced in the unions’ second
submission earlier set out, namely that the “fairly chosen” requirement could not be satisfied
where a small group of employees entered into an agreement covering a much broader group
and thereby deprived future employees in the broader group of the right to collectively
bargain. As Buchanan J pointed out, under the FW Act it is a consequence of the making of
any enterprise agreement (including greenfields agreements, the negotiation of which does not
involve any employees) that future employees are prevented from engaging in bargaining
under the FW Act while the agreement remains within its nominal term. That therefore cannot
be a reason, by itself, to conclude that the group of employees covered by an enterprise
agreement was not fairly chosen.
[23] The submission that CFMEU v John Holland was wrongly decided is noted. It is not a
submission which it is open for us to consider.
[24] It was acknowledged in CFMEU v John Holland that deliberate manipulation of the
agreement-making procedures under the FW Act might found a conclusion that the group of
employees covered by the agreement was not fairly chosen. Buchanan J said (emphasis
added):
“[33] There is no requirement that employees who vote to make an agreement must
have been in employment for any length of time, and there is no requirement that they
remain in employment after the agreement is made. Presumably, the presently
employed members of such a group will act from self-interest, rather than from any
particular concern for the interests of future employees. The potential for manipulation
of the agreement-making procedures is, accordingly, a real one. However, no
suggestion of that kind is made in the present case and the possibility may therefore be
put to one side for the purpose of the discussion. That is an important consideration
because it suggests, as the primary judge thought, that determination of whether the
group of employees was fairly chosen in the present case needed to bring to account
the business rationale for the choice, as well as deal with any possibility of unfair
exploitation. It was not irrelevant in that assessment to bear in mind, as the primary
judge said, that the agreement provided benefits, not detriments, for those to whom it
would apply.”
[25] The unions relied upon the above passage in support of their third submission that the
business rationale for the selection of the group to be covered by the Agreement was
illegitimate because it was concerned with undercutting “market rates” for gas project work.
We cannot accept that submission. The evidence before us disclosed that Sustaining Works
was established for the specific purpose of obtaining small-scale supplementary gas supply
project work in the Surat Basin. Leighton’s costs were not competitive in the market for this
work, and accordingly Sustaining Works needed an enterprise agreement with lower rates
than the APLNG Agreement in order to assist in achieving the necessary reduction in costs. It
was also necessary to have an enterprise agreement which covered the whole range of
functions required by this work, which the APLNG Agreement did not have.
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s186.html
[2015] FWCFB 4422
9
[26] There was no question that the Agreement satisfied the better off overall test, and the
statutory declaration in support of the application for approval of the Agreement showed that
certain terms and conditions including wage rates were markedly more beneficial than the
reference instrument, being the Hydrocarbons Industry (Upstream) Award 20106. In those
circumstances, we do not consider that the fact that the Agreement did not match the rates and
conditions in the APLNG Agreement is relevant to the question of whether the group of
employees covered by the Agreement was fairly chosen. While it is entirely understandable
that the unions strongly desired, in the interests of their current and future members, to
maintain the standards established by the APLNG Agreement on all future gas project work,
we nonetheless consider that there was an intelligible and legitimate business rationale for the
selection by Sustaining Works of the employees to be covered by the Agreement. Further,
while Sustaining Works may have had the option to bargain for a greenfields agreement with
the unions rather than taking the course it did, its apparent assessment that it could not have
achieved the outcome it required in bargaining with the unions provided a legitimate rationale
for not exercising that option. In any event, as was made clear in CFMEU v John Holland, the
FW Act does not contain any policy preference for greenfields agreements over other types of
agreements, and where a greenfields agreement is made and approved, its effect is likewise to
prohibit collective bargaining under the provisions of the FW Act while the agreement
remains within its nominal term.
[27] There was no evidence in this case of deliberate manipulation of the agreement-
making process. There was no suggestion that the five employees with whom the Agreement
was made were not bona fide employees of Sustaining Works at the relevant time. Events
since the Agreement was made do not demonstrate any expansion of the Sustaining Works
workforce into a wider group which has been deprived of the right to collectively bargain;
Sustaining Works actually employed less persons under the Agreement at the time of the
appeal hearing than at the time the Agreement was made. The fact that Protech supplies
labour to Leighton and pays that labour in accordance with the terms of the Agreement is not
a relevant consideration. Although the business rationale for Leighton using Protech rather
than Sustaining Works to supply labour is not clear, it is nonetheless the case that Protech and
its employees are not covered by the Agreement and, unless some other enterprise agreement
already applies to their employment, have the capacity to engage in enterprise bargaining for
their own agreement should they wish to do so. The unions’ third submission is therefore
rejected.
Another issue
[28] In the course of the appeal hearing, a separate issue was identified which was not
raised by the unions’ notice of appeal but which we consider is necessary for us to deal with.
Section 185(2)(a) of the FW Act requires, in relation to an application for approval of an
enterprise agreement, that the application be accompanied by “a signed copy of the
agreement”. Section 185(5) empowers the making of regulations prescribing requirements
relating to the signing of enterprise agreements. In that respect, reg.2.06A(2) of the Fair Work
Regulations 2009 provides:
(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed
copy only if:
6 MA000062
[2015] FWCFB 4422
10
(a) it is signed by:
(i) the employer covered by the agreement; and
(ii) at least 1 representative of the employees covered by the agreement;
and
(b) it includes:
(i) the full name and address of each person who signs the agreement;
and
(ii) an explanation of the person’s authority to sign the agreement.
[29] The copy of the Agreement which accompanied Sustaining Works’ application for
approval of the Agreement was not signed in accordance with reg.2.06A(2). It was signed by
two persons “for and on behalf of the Employees”. The first of these gave his name as “C.
Fabar”. That is not a full name. The “address” given was “Leightons Chinchilla”. That is not,
in accordance with common understanding, an address. The second employee, Kieth [sic]
Johnson, gave an “address” as “c/o Leighton Contractors”. That is also clearly not a proper
address.
[30] Section 185(2) is expressed in mandatory terms. Section 186(1) empowers approval of
an enterprise agreement only if “an application for the approval of an enterprise agreement is
made under section 185 …”. We consider that an application “under” s.185 must be one made
in accordance with it. Further, s.585 requires that “An application to the FWC must be in
accordance with the procedural rules (if any) relating to applications of that kind”.
Accordingly it is not open to the Commission to simply ignore a failure to comply with the
signature requirements. Section 586 empowers the Commission to deal with errors and
irregularities in applications and associated documents as follows:
586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to
a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the
FWC.
[31] However, because the signature issue was never raised before the Commissioner, there
was never any opportunity for the exercise of the power in s.586 to deal with the problem. As
a result the Commissioner’s approval of the Agreement was arguably not in accordance with
s.186(1) because he did not have before him an application made in accordance with s.185.
[32] Having regard to ss.604 and 607, we consider that we cannot ourselves exercise the
powers available under s.586 without at least granting permission to appeal. We consider that
it is appropriate to grant permission to appeal in the public interest in order to ensure that the
mandatory provisions of the FW Act which we have identified are complied with. Pursuant to
[2015] FWCFB 4422
11
s.586(a), we will allow Sustaining Works to file a copy of the Agreement which is signed in
accordance with the requirements of reg.2.06A(2) within 14 days of the date of this decision.
Once this is done, we will exercise our power in s.607(3)(a) to confirm the Decision. In the
event that some unanticipated difficulty arises, we grant liberty to apply. If a signed copy of
the Agreement is not filed, we will hear from the parties further as to what course should be
taken in that circumstance.
Conclusion
[33] We order as follows:
(1) Permission to appeal is granted.
(2) Pursuant to s.586(a) of the FW Act, Sustaining Works is allowed to correct its
approval application by lodging in the Commission and serving on the unions a
copy of the Agreement which is signed in accordance with reg.2.06A(2) of the
Fair Work Regulations 2009 within 14 days of the date of this decision.
(3) Liberty to apply is granted.
VICE PRESIDENT
Appearances:
W. Friend QC with C. Massy solicitor for the Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia and the Australian
Manufacturing Workers’ Union.
J. Murdoch QC with M. Coonan solicitor for Sustaining Works Pty Limited.
Hearing details:
2015.
Brisbane:
3 June.
Printed by authority of the Commonwealth Government Printer
Price code C, PR568934
OF THE FAIR WORK MISSION THE
