FWC refuses CFMMEU leave to intervene in the approval of a Certified Agreement

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FWC refuses CFMMEU leave to intervene in the approval of a Certified Agreement

In a recent decision involving a South Australian building company, a Fair Work Commission Deputy President has refused leave for the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to intervene in the approval of a certified agreement.

An application had made been by the Tandem Building Group (SA) Pty Ltd for approval of an enterprise agreement (the Agreement), pursuant to s 185 of the Fair Work Act 2009 (the Act).

The union had made written submissions requesting to be heard pursuant to s 590 of the Act, which the Applicant opposed.

In reviewing the material presented, Deputy President Gerard Boyce concluded:

  • The CFMMEU was not a bargaining representative concerning the negotiation or the making of the Agreement;

  • The CFMMEU brought no evidence of any membership within the company or any involvement in the company (the union did not assert they had any members);

  • The CFMMEU had not identified any specific knowledge as to the Applicant’s workplace or actual knowledge of the bargaining or making of the Agreement; and

  • Employees voted to approve the Agreement.

In the Deputy President’s estimation,

“the CFMMEU are strangers, not only in respect of the bargaining and the making of the Agreement, but to the Applicant’s workplace/s. At this point in time, or previously, the CFMMEU has no right, interest or legitimate expectation in respect of the Agreement, or its approval…the fact that the CFMMEU may represent employees into the future does not, of itself, warrant the exercise of the discretion in favour of granting the CFMMEU’s request to be heard…”.

The Deputy President further noted that the Agreement:

  • Does not alter or interfere with an (eligible) employee’s right to choose to join the union; and

  • Will not affect the union’s rights to participate in future bargaining or to represent employees under the Agreement if any current or future employees become members of the union.

In determining that the application satisfied all requirements under the Act, the Agreement was approved with an operative date of 7 June 2021 and a nominal expiry date of 31 May 2025.

We note other regular Commission decisions to allow or consider the union’s involvement in other non-union Agreement applications to ‘assist’ the Commission.

Tandem Building Group (SA) Pty Ltd T/A Tandem Building Group (AG2021/5081) 31 May 2021

For queries about unions interventions, agreement making, or any other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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