FWC refuses to accept non-union construction agreement

FWC refuses to accept non-union construction agreement

The Fair Work Commission has rejected an application to certify a non-union agreement proposed by a commercial builder in NSW, on the grounds that the employer had failed to comply with legislative requirements to sufficiently explain proposed terms of the Agreement to relevant workers.

The application was made on 17 November 2020 by The Master Builders’ Association of New South Wales (MBA NSW) on behalf of its member, Lipman Pty Ltd. The Agreement was designed to replace an existing union agreement, Lipman Pty Ltd/CFMEU Collective Agreement 2018, which had passed its nominal expiry date of 31 December 2018.

Lipman’s Group Manager – People and Culture (GMPC) advised Commissioner Leigh Johns of the steps taken to communicate the proposed terms. These included an invitation to all employees to attend a paid meeting on 27 October 2020, during which a PowerPoint presentation was given, the documentation provided highlighting amended items, and a question-and-answer session undertaken. The employer noted that the majority of employees had been familiar with negotiating agreements over several previous rounds.

In their view, they had undertaken sufficient steps to comply with the legislative requirements of the Fair Work Act 2009.

However, Commissioner Johns did not agree, nor did the CFMMEU, who opposed the application.

As Commissioner Johns stated in his decision,

“Self serving statements by an employer about compliance are not sufficient to discharge the proof required by s 180(5) of the FW Act”.

Commissioner Johns noted that he had given the employer several opportunities to clarify the communication process given in explaining the terms of the Agreement to employees, but was not satisfied with the responses provided. He did acknowledge,

“I accept that a two-hour toolbox meeting, a page turner exercise, meetings with the Consultative Committee and the Discussion Meeting held on 27 October 2020 were all reasonable steps. However, that is not the end of the matter”.

He noted that there were significant clauses for which little or no explanation had been provided. As he stated,

“I have identified clauses in the Agreement that are not trifling, insignificant or inconsequential so that no minimal explanation needed to be given. This is not about requiring a system of perfection. There are substantive terms that required a proper explanation. It would have been reasonable to do so”.

Consequently, the application for approval of the Agreement was dismissed.

Master Builders’ Association of New South Wales, The – Re Lipman Pty Ltd Collective Agreement [2021] FWC 1016 (24 February 2021)

For queries about negotiating and registering agreements or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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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