Application by Acciona Construction Australia Pty Ltd [2025] FWC 21 (6 January 2025)

Fair Work Commission|2025-01-06

Application by Acciona Construction Australia Pty Ltd [2025] FWC 21 (6 January 2025)

s.185 - Enterprise agreement

Application by Acciona Construction Australia Pty Ltd

Application for approval of enterprise agreement - employee organisations wishing to be heard - applicant opposed employee organisations being heard -

[1] On 19 September 2024 Acciona Construction Australia Pty Ltd (Acciona) applied to the Fair Work Commission (FWC) under s.185 of the Fair Work Act 2009 (Cth) (the Act) for approval of the Acciona Construction Australia Pty Ltd Western Australia Enterprise Bargaining Agreement 2024 (the Agreement). On 30 September 2024 Mr Adam Woodage of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) wrote to the FWC Registry seeking copies of the paperwork filed by Acciona in its application.

[2] On 3 October 2024 Mr Cory Fogliani of Fogliani Lawyers wrote to the FWC Registry advising that he acted for both the CEPU and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and that both unions wished to be heard on the matter of approval of the Agreement. On 11 October 2024 Acciona through its representative Mr Marcus Topp of Kingston Reid lawyers advised that it opposed the CEPU and AMWU (the Unions) being heard.

[3] On 16 October 2024 the matter was allocated to my Chambers. Later that day I advised the parties that I intended to convene a conference to discuss the application, and that conference was subsequently held on 24 October 2024. The concerns of the parties were unable to be resolved at conference, however the parties undertook to continue discussions and report back to the FWC. The parties subsequently met on 30 October 2024 and agreed to provide each other with further information. To allow this exchange Acciona sought a two-week extension of time to report back to the FWC which was granted.

[4] On 15 November Acciona advised that it had written to the Unions and asked if they would agree to continue discussions but had not received a response. Given this, Acciona requested that the matter be programmed for hearing. On 18 November 2024 I caused my Chambers to write to the Unions to determine whether they intended to continue discussions with Acciona. Later that day Chambers received a response indicating that in the absence of a withdrawal of the Acciona application the matter should proceed to hearing.

[5] Given the views of the parties, a mention hearing was held on 26 November 2024 to discuss directions for progress of the matter. At the hearing the issue of the Unions being heard was canvassed and it was resolved that this matter would be dealt with before any further discussion of approval of the Agreement. It was resolved as follows with respect to the Unions being heard:

"The issue of the scope of the intervention by the AMWU and CEPU will be dealt with as follows:

1. By 3 December 2024, the CEPU and AMWU are to file with the Commission and serve upon the Applicant any written submissions regarding their intervention and its scope;

2. By 10 December 2024, the Applicant is to file a reply to the CEPU and AMWU's written submissions; and

3. By 12 December 2024, the parties are to indicate their view as to whether the question regarding the scope of the CEPU and AMWU's intervention may be determined 'on the papers'."

[6] Submissions were received by the due dates and Acciona confirmed that it agreed that the matter could be determined on the papers. On 12 December 2024 the Unions made a request to provide short reply submissions and advised that if this were to be allowed then they would agree to the matter being determined on the papers. On 13 December I advised the parties that I would grant this request subject to Acciona having an opportunity to review those submissions and advise, by 24 December 2024, whether it still agreed for the matter to be heard on the papers.

[7] The reply submissions were received from the Unions on 17 December 2024. On 24 December 2024 Acciona advised that it was still content for the matter to be determined on the papers.

[8] The Unions submitted that the discretion afforded the FWC by s.590 of the Act was broad and cited the decision of the Full Bench in CFMEU v Collinsville Coal Operations Pty Ltd where the Full Bench stated as follows:

"We would make the observation however, that the Commission may choose, in a particular matter to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submission from a person or organisation."[1]

[9] While the Unions were mindful that the FWC has, in previous decisions, declined to allow employee organisations to be heard in similar circumstances as are found in this matter, they submitted that there are no hard and fast rules. Instead, they submitted that each case should be considered on its particular merits and as such the FWC's approach to how it chooses to inform itself will vary from case to case.

[10] In this particular case, the Unions submitted that there are a number of issues to be considered with respect to the Agreement's approval, including whether the group was fairly chosen, whether the employees were sufficiently representative and whether the effect of the terms of the Agreement was properly explained. Given these issues would require cross-examination, it was submitted that allowing the Unions to participate would mean that the FWC was spared the burden of preparing for such cross-examination.

[11] In the first instance, Acciona submitted that the Unions should not be heard but that, in the alternative, if they are to be heard it should only be with respect to the Better Off Overall Test (BOOT). Acciona also noted that the Unions had not filed any evidence in support of their contentions which formed the basis of their application to be heard.

[12] In summary, Acciona opposed the Unions being heard on three grounds:

(a) "neither the AMWU nor the ETU were bargaining representatives for the Agreement;

(b) the substantive objections raised by the Unions in its Joint Submission simply restate an issue raised by the Commission, without adding anything of additional value; and

(c) the discretion in section 590 of the Fair Work Act 2009 (Cth) (FW Act) should not be exercised in favour of the CEPU and ETU."[2]

[13] With respect to status as bargaining representative, Acciona submitted that neither union had established that it was a default bargaining representative and thus neither union has a right to be heard in the capacity of bargaining representative.

[14] Acciona further submitted that the Unions had in the main simply re-stated the concerns previously articulated by the FWC and failed to build upon them in such a way as to demonstrate a need for them to be heard. Acciona submits that the Unions had also been vague about the relevance of such additional points as were made - for example, regarding the labourer who voted on the Agreement.

[15] Given the above, Acciona proposed that it was open to the FWC to take the view that the Unions' involvement would not assist the FWC and would only serve to prolong the proceedings. Further, to the extent that the FWC has concerns it is open to it to request evidence and submissions from the applicant.

[16] With respect to s.590 of the Act, Acciona submitted that the FWC does not need an intervenor in this matter and that the Unions have an ulterior purpose motivating their request to be heard. In terms of needing an intervenor, Acciona submitted as follows:

"Put simply, notwithstanding that the Applicant denies there are any, the Commission is more than capable of identifying any issues with the application for approval and seeking evidence, submissions or undertakings from the Applicant to address those matters.

Moreover, there is a real risk that the granting of permission to intervene in the matter will result in the Agreement approval process turning into a protracted set of proceedings with no real or substantive basis for doing so. As outlined above, the Unions' Joint Submission adds nothing to the concerns raised by the Commission and otherwise demonstrates their tendency to make assertions without a proper basis. There is a real risk that allowing their intervention will therefore delay the approval of the Agreement by causing the Commission to hear matters that do not aid Commission's consideration or assist in the disposition of the application for approval.

In such circumstances, the Unions' applications to be heard in this matter undermine the object of the FW Act to ensure that applications to the Commission for approval of enterprise agreement are dealt with without delay."[3]

[17] In terms of an ulterior motive, Acciona submits that despite agreeing to enter into discussions regarding their concerns about the Agreement, the Unions had used those discussions to advance claims with respect to different and entirely separate agreement. Such actions were, in Acciona's submissions, an abuse of process. It further submitted that the Unions were seeking to prolong the approval process for the Agreement rather than seeking to assist the FWC.

[18] Finally, Acciona cited the statement of Deputy President Boyce in Re: Downer EDI Mining - Blasting Servies Pty Ltd (Downer). In that case the CFMMEU was seeking to be heard in circumstances similar to the present case and the Deputy President stated as follows:

"The foregoing situation can result (and in many cases does result) in significant delay and/or the complicating of an otherwise straightforward enterprise agreement approval process by the Commission. The flow-on effects are that the Commission's valuable time and resources are tied up in a contested enterprise agreement approval process, being time and resources that might otherwise be devoted to other matters before the Commission.

Further, employees who voted to approve the enterprise agreement are denied the expeditious granting of the benefits contained in the enterprise agreement whilst a

'stranger' delays the approval process by raising (in many cases) a smorgasbord of issues and arguments against approval. Such a stranger has no 'skin in the game' in advancing such opposition (i.e. the approval of the proposed enterprise agreement is either approved with a (in many cases lengthy) delay, or not approved). The only persons directly suffering or prejudiced from any such delay are the employees who democratically voted to approve the enterprise agreement and have its more beneficial terms and conditions (which must leave the relevant employees better off overall than the relevant modern award) apply to them."[4]

[19] In their reply submissions, the Unions noted that Acciona had not provided any rationale for limiting the Unions' submissions to the BOOT and proposed that this was relevant in circumstances where they wanted to address the FWC on non-BOOT issues such as genuine agreement and fairly chosen. The Unions also submitted that Acciona's submissions with respect to the Unions not establishing their rights as bargaining representatives were misplaced as they were not seeking to claim such rights but rather seeking to be heard pursuant to the FWC's powers under s.590.

[20] The Unions also took issue with Acciona's complaint that they had not built upon the concerns already raised by the FWC, noting that they were invited to make submissions with respect to being heard on the application rather than the specifics of their concerns. Finally, the Unions rejected the submission that they had an ulterior purpose, noting there was no factual basis for Acciona's assertion to that effect. They clarified their interest in the Agreement as having arisen because:

"The Agreement was voted up by three people who appear to have been working on the Bunbury Ringroad Project - one of which was a labourer.

The Agreement has a broad scope clause that can cover a large variety of trades and callings in an unlimited number of industries in Western Australia. It is unclear how those three people could have an adequate stake in the Agreement so as to genuinely agree to its terms.

Given the broad scope provision, it is likely that the AMWU's and ETU's members will have to work under the Agreement at some point in the future if it is approved by the Commission."[5]

[21] In the first instance, I should note that I accept the Unions' submission that they are not claiming bargaining representative status but rather seeking permission consistent with the FWC's powers under s.590. Given this, there is no persuasive value in Acciona's submissions that the Unions have not established their status as bargaining representatives, if indeed that was the intent of those submissions. I am also not persuaded by the submission that the Unions have simply repeated the FWC's concerns.

[22] In the first instance, I note that the Unions have in fact gone further - for example in calling into question the relevant award(s) for comparison. Secondly, sharing the Commission's concerns does not mean that the Unions may not approach those concerns from a different perspective or with different notions of relevant evidence. I have already conveyed to the parties the concerns I have regarding the Agreement's capacity for approval. While there are a small number of BOOT issues, I believe that these should be able to be remedied by undertakings of an uncontroversial and commonplace nature. However, the concerns regarding sufficient interest and scope are, in my view, significant and will require very careful analysis.
[23] I am also not minded to accept the submission - absent any evidence - that the Unions have an ulterior motive. Acciona could have submitted a witness statement attesting to the approach taken by the Unions during their discussions but chose not to. Even if there were evidence that another agreement was canvassed, this would not of itself prove an ulterior motive but might merely reflect the Unions taking an opportunity to raise another relevant issue while a chance presented itself.

[24] I am mindful of the comments of Deputy President Boyce in Downer. However, as noted by the Unions, there are no hard and fast rules in these matters and each case needs to be assessed on its merits. In this matter, I have - as indicated to the parties - formed serious concerns about issues such as sufficiently representative. For completeness, the concerns as conveyed to the parties are repeated below:

Sufficient interest and representative: The Form F17 indicates that only 3 employees are covered by the Agreement. However, there are a significant number of classifications within the Agreement as the Award is incorporated and the Agreement provides that employees may work under any classification under the Award. This may raise concerns regarding whether the employees entitled to vote on the Agreement are employed across the full range of classifications in the Agreement pursuant to s.188(2) of the Act and Statement of Principles on Genuine Agreement item 17, which provides as follows:

17. In considering whether employees have a sufficient interest in the terms of an enterprise agreement as required by section 188(2)(a) of the Fair Work Act, and whether the employees are sufficiently representative as required by section 188(2)(b), the FWC may take into account:

(a) whether the employees entitled to vote on the enterprise agreement are to be paid the rates of pay provided for in the agreement, and

(b) the extent to which the employees entitled to vote on the enterprise agreement are employed across the full range of:

(ii) types of employment in the agreement (for example, full-time, part-time and casual)

(iii) geographic locations the agreement covers, and

(iv) industries and occupations the agreement covers.

It is clear that the Agreement was voted on by three employees only. The Deputy President has concerns that these three employees are clearly not employed across all of the classifications covered by the Agreement - or indeed even a majority of them. Given this, it is difficult to see how they can be said to be sufficiently representative of the employees the Agreement is expressed to cover.

Given these issues, the Deputy President seeks submissions on how the three employees who voted on the Agreement can be said to be sufficiently representative of the employees the Agreement is expressed to cover. Such submissions should set out the actual classifications (and employment status) of the three employees who voted.

Scope: In its Form F17, the Applicant states as follows:

"...the Agreement that was voted upon by employees is confined to a part of the building and construction sector - civil construction - rather than "the entire building sector" more widely."

"3.1 The Agreement covers and applies to each of the following parties:

(a) Acciona Construction Australia Pty Ltd (the Company or the Employer); and

(b) All persons employed by the Company who are engaged within the state of Western Australia in Classifications prescribed in Schedule B of this Agreement (the Employees)"

This subclause would not appear to restrict coverage to the civil construction sector, but rather to the classifications listed in Schedule B.

"3.2 This Agreement will apply to Employees employed in the classification (sic) specified in Schedule B - Civil Construction when they perform work within the state of Western Australia, with the exception of the following projects..."

This subclause might be construed as restricting work to the civil construction industry but only by virtue of its reference to that industry. However, Schedule B itself is simply called "Schedule B - Classifications". It makes no mention of civil construction. Further, the Schedule contemplates Employees who are not explicitly classified under the classifications in the Schedule, referring them to the Award - which is incorporated into the Agreement - for classification. Presumably this allows any classification under the Award., including those outside of the civil construction stream.

Clause 3.3 of the Agreement provides a definition of civil construction, but it is difficult to see the relevance of the definition in the context of the Agreement.

The Deputy President is of the view that the scope of the Agreement is - at best - uncertain. He cannot see anything that definitively limits the operation of the Agreement to the civil construction industry. This then exacerbates the issue of "sufficiently representative."

If the Applicant is of the view that the Agreement only applies in civil construction then it will need to make submissions as to how this is the case or alternatively proffer an undertaking that the Agreement shall only be applied to work falling within the scope of civil construction as defined in the Award.

[25] I am also mindful that at times the FWC has been assisted by the participation of unions who have been able to provide a different perspective regarding such issues as genuinely made. I am particularly drawn to the example of the Australian Workers' Union appeal against the approval of the Workforce Logistics Agreement[6], where a Full Bench overturned the approval of an agreement, having found that the agreement had not been genuinely agreed. While I do not suggest that similar circumstances are to be found in the present application, I am nonetheless persuaded that where there are concerns shared by both the FWC and parties having a practical interest in the outcome of an approval - such as the Unions - the FWC's role in ensuring the requirements for approval are rigorously observed will be assisted by the input of those parties.

[26] Given the above, I am satisfied that it is appropriate for me to exercise my discretion to allow the Unions to be heard with respect to approval of the Agreement. Their involvement and input will not be limited to submissions regarding the BOOT but may traverse other requirements of approval.

[27] The issue of standing to be heard now having been resolved, the matter will be programmed for hearing.

[1] CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940 at [75].

[2] Acciona Submissions page 1 paragraph 5

[3] Acciona Submissions page 3 paragraphs 15-17

[4] Re: Downer EDI Mining - Blasting Servies Pty Ltd [2019] FWC 5615 at [19] and [20]

[5] CEPU and AMWU reply submissions page 2 paragraph 11

[6] Appeal by the Australian Workers' Union [2023] FWCFB 157

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