Fair Work Act 2009

s.185 - Enterprise agreement

Construction, Forestry and Maritime Employees Union

Application for approval of the Advanced Civil Group Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement

• [1] An application has been made for approval of an enterprise agreement known as the Advanced Civil Group Pty Ltd Gold Coast Light Rail Stage 3 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 the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant/CFMEU). The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Service Union of Australia (CEPU) was also a signatory of the Agreement. The Agreement is a single enterprise agreement which would cover Advanced Civil Group Pty Ltd (the Employer) and their employees engaged on the Gold Coast Light Rail Stage 3 Project (the Project).

• [2] The Australian Workers' Union (the AWU) advised the Commission on 18 September 2023 that it wished to be heard on the matter and asserts that it has a right to be heard.

• [3] The matter was initially allocated to another member and then reallocated to me on 19 October 2023.

• [4] The CEPU did not contend to be a Bargaining Representative by the Agreement and nor did they seek to be covered by the Agreement.[1] I do not consider it necessary to make any more of this.

• [5] The Form F16 application for approval of the Agreement was filed on 6 September 2023 by Mr Kane Lowth, Divisional Branch Assistant Secretary, states that the CFMEU were the bargaining representatives for the Agreement.

• [6] The Form F17 Employer's Declaration was completed by Mr Nathan Stewart and dated 5 September 2023.

• [7] The Form F18 Employee organisation declaration was completed by Mr Kane Lowth and dated 5 September 2023.

• [8] A Notice of Employee Representational Rights was sent to relevant employees on 26 July 2023 with the proposed scope as Advanced Civil Group Pty Ltd gives notice that it is bargaining in relation to a single-enterprise agreement (Advanced Civil Group Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement) which is proposed to cover employees that do building, construction and similar work and are based in Queensland.

• [9] The AWU was directed to file an outline of submissions which it did on 22 September 2023. The CFMEU was directed to file any submissions and evidence in reply by 4pm on 7 November 2023 and the AWU was directed to file any submissions and evidence in reply by 4pm on 21 November 2023. The matter was listed for hearing on 27 November 2023. The CEPU did not communicate further with the Commission, did not file any submissions and did not seek to be heard.

• [10] Both parties (the CFMEU and the AWU) sought permission to be legally represented, to which there were no objections. Leave was granted to both parties pursuant to s.596(2) of the Act on the basis it would aid the Commission to deal with the matter more efficiently.

• [11] The AWU opposes the application on the following grounds:

1. Ground 1: The CFMEU has not demonstrated that it is a bargaining representative for an employee covered by the proposed agreement;

1. Ground 2: The CEPU has not demonstrated that it is a bargaining representative for an employee covered by the proposed agreement;

1. Ground 3: There are deficiencies in the signing of the proposed agreement;

1. Ground 4: The information contained in the Notice of Employee Representational Rights (NERR) is inaccurate in relation to the scope of work that the proposed agreement will cover; and

1. Ground 5: The Commission would not be satisfied that the three employees who voted on and were covered by the proposed agreement:

• i. Have a sufficient interest in the terms of the proposed agreement;[2]
• ii. Are not sufficiently representative;[3]

1. Had an understanding of the agreement in respect of deficiencies as to how the agreement was explained to the employees;

• [12] A number of concerns were raised by my chambers with the parties in respect of the Application, on Monday 23 October 2023. The Applicant responded on 7 November 2023 in which they replied to the submissions of the AWU and provided:

1. An amended Form F16 signed by Kane Lowth as Divisional Branch Secretary of the CFMEU dated 7 November 2023;
2. An amended Form F17B signed by Mr Stewart on 7 November 2023;
3. An amended Form 18 declaration of an employee organisation signed by Kane Lowth claiming that the CFMEU is a bargaining representative for the Agreement signed on 7 November 2023;
4. A statement from Mr Nathan Stewart, the Managing Director of Advanced Civil Group, signed on 7 November 2023; and
5. A replacement signature page for the Agreement, dated 5 September 2023

1. Ground 1: That the AWU had not suggested it was a bargaining representative for the Agreement and therefore submitted that the AWU should not be heard in this matter.

1. The AWU suggestion that "the CFMEU has not demonstrated it is a bargaining representative for the proposed Agreement" has two parts.

• i. The first part is whether the CFMEU was a bargaining representative having regard to its eligibility rules. The CFMEU submit that they are expressly able to cover Excavator Operators in the part of the CFMEU eligibility rule known as the FEDFA rule. The CFMEU goes on to say that the rule uses excavator drivers instead of operators and submits this is a distinction without a difference and relies on the AWU authority in John Holland[4] as being consistent with the evidence of the Employer in this matter.

1. Ground 2: The second issue is whether the CEPU has demonstrated whether it is or isn't a bargaining representative, acknowledges that the CEPU is not and that they signed the agreement after it was made. This issue is identified as a straw man and has no further relevance insofar as the statutory test is concerned.

1. Ground 3: The deficiencies in the signing of the proposed agreement are corrected by the refiled replacement page filed with these submissions.

1. Ground 4: The AWU proposition that the NERR is inaccurate is dismissed as "clutching at straws." The CFMEU submit that the true scope of the agreement was abundantly clear from the NERR and in particular the title of the agreement which was there stated. It is submitted that this issue has no merit because there is no inaccuracy. In the alternative, it is submitted that any imprecise expression within the NERR is immaterial and does not preclude approval of the agreement.

1. Ground 5: The fifth AWU issue is "The three employees do not have a sufficient interest in the terms of the Proposed Agreement. In fairness to the AWU it didn't have the benefit of the material filed together with these submissions at the time that the point was taken. It has now been made abundantly clear that the only employees - current or future - are Excavator Operators. There can be no dispute about those facts. In light of those facts, this issue has no merit."

1. Ground 6: the issue is [whether] "The employees who voted for the agreement had an informed and genuine understanding of what was being approved". To the extent the sixth AWU issue is a re-run of the NERR point (the fourth AWU issue) then it fails for the reasons set out at [7] above. The remainder, being complaints about the F17, have been disposed of by the F17B of Mr Stewart.

1. Ground 7: "The views of the CFMEU and the CEPU are not relevant. To the extent the seventh AWU issue is a re-run of the CFMEU bargaining representative point (the first AWU issue) then it fails for the reasons set out at [4] above. To the extent the seventh AWU issue is a re-run of the CEPU bargaining representative point (the second AWU issue) then it is irrelevant for the reasons set out at [5] above."

1. The CFMEU conclude their submissions by stating that the AWU submissions are wholly unmeritorious and should be withdrawn. The CFMEU state that "they can fairly be described as an attempt by a stranger to the negotiations to play spoiler during the approval process; they should be given short shrift by the Commission. If the AWU submissions are not withdrawn, the CFMEU reserves its rights as to costs."

• [14] The CFMEU addresses issues raised by my chambers in correspondence sent on 23 October 23 and in summary say that the issues are resolved by the filing of amended material as outlined.

1. As the principal civil construction union in Queensland, the AMU has a real interest in the mater and that it is appropriate for them to be heard. Clause 1 of the Agreement makes clear that the Agreement will cover all employees of the Employer and not just those that do building and construction and similar work, as the NERR suggests. The description of work on the Employer's website, along with clause 4.3 of the Building and Construction General On-site Award 2020 (the Award), indicates that civil construction work will be performed, meaning that the Agreement covers employees performing that work. This is further supported by appendix B of the Agreement, which provides civil construction worker classifications. Further, the AWU eligibility rules refer to employees engaged in labour in connection with railway and tramway construction and maintenance.

1. The CFMEU has not demonstrated that they are a bargaining representative. The AWU submits that s.176 of the Act prevents the CFMEU from being a bargaining representative, as the CFMEU's eligibility rules do not provide them with industry coverage in the civil construction industry. Therefore, they could only be a bargaining representative if they had relevant occupational rules for employees performing work under the Agreement. Prior to amalgamation, the only pre-amalgamation unions that had occupational coverage of civil construction employees were the Building Workers Industrial Union (BWIU) and the Federated Engine Drivers and Firemen's Association (FEDFA). Therefore, the AWU contends that the CFMEU can only be a bargaining representative if there is an employee whose employment can be characterised in accordance with the BWIU and FEDFA occupational rules, and who is a member of the CFMEU. The AWU submits that there are no employees employed in accordance with those rules, meaning that the CFMEU does not satisfy the requirements of s.176 of the Act.

1. As the CFMEU is not a bargaining representative for the Agreement (for the reasons outlined above), they cannot make an application for the Agreement to be approved. The AWU also submits that the signature block of the Agreement does not list the full name and address of the person signing the Agreement on behalf of the CFMEU, nor does it provide an explanation of their authority to sign.

1. The CEPU has not demonstrated that they are a bargaining representative. While the CEPU has capacity to represent the industrial interests of employees employed in the Plumbing and Mechanical Services Sheet Metal Worker classifications, it is unlikely that any of the three employees who voted on the Agreement would be employed within those classification, given the Employer's primary activity is earthmoving.

1. There are deficiencies in the signing of the Agreement, as outlined in subparagraph c above.

1. The information contained in the NERR is inaccurate in relation to the work that the Proposed Agreement will cover. The AWU states that the NERR, insofar as it states that the Agreement "is proposed to cover employees that do building and construction and similar work and who are based in Queensland", is inaccurate and invalid, meaning that the Agreement cannot be approved by reason of s.188(4) of the Act. The AWU submits the NERR is inaccurate, as it:

1. describes the work as "general building and construction" work, as opposed to "civil construction work" as it is described in the Agreement and;
2. suggests that the Agreement will apply to work performed through Queensland and is not limited to work performed on the Gold Coast Light Rail Stage 3 Project.

The AWU argues this is not a minor procedural or technical error in accordance with s.188(5) of the Act, and the NERR is invalid. If the NERR is not invalid, the AWU submits that the inaccuracies would weigh against the Commission concluding the Agreement had been genuinely agreed to by the employees.

1. The three employees do not have a sufficient interest in the terms of the Agreement. The AWU argues this on the basis there are only three employees employed by the Employer covered by the Agreement, and there is no evidence of those employees' classifications. Furthermore, the access period for the Agreement was commenced on the same day as the three employees were given the NERR, suggesting that no authentic bargaining occurred. The AWU therefore submits the Agreement was not genuinely agreed to by the employees.

1. The employees who voted for the Agreement did not have an informed and genuine understanding of what was being approved, by reason of the NERR inaccuracies. Additionally, the AWU states that while the Employer's Form F17 states that the Agreement was explained by reference to the "existing agreement", but that there is no reference to any existing agreement in the NERR or the present Agreement. For these reasons, the AWU submits the Commission cannot be satisfied the employees who voted for the Agreement had an informed and genuine understanding of what was being approved, pursuant to clause 18 of the Statement of Principles.

1. The CFMEU and the CEPU has not provided evidence that they were bargaining representatives, meaning their views are not relevant for the purpose of clause 19 of the Statement of Principles. Even if they were bargaining representatives, given their limited coverage, it could not be concluded that any views they express would be relevant.

1. Ultimately, the AWU submits that the Agreement has not been genuinely agreed to by the employees covered.

• [16] In reply to the CFMEU's submissions, the AWU submits:

1. The deficiencies in the forms filed by the CFMEU and the Employer have the effect that s.185(3)(a) of the Act has not been complied with, as there was no valid application filed within 14 days after the Agreement was made. Further, the filing of the replacement signature page does not remedy the failure to comply with the signature requirements. Instead, the existence of the signature page supports the AWU's contention that there was no signed copy, in accordance with s.185(5) and (2) of the Act and Reg 2.06A of the Fair Work Regulations 2009, of the Agreement before the Commission within 14 days of the Agreement being made. The application for approval was therefore not validly made.

1. The CFMEU's status as a bargaining representative is a jurisdictional fact. The CFMEU must demonstrate that its status is not merely asserted, but demonstrable as a fact. The evidence relied upon by the CFMEU does not demonstrate that it is a bargaining representative.

1. While the AWU does not concede that the Employer's current employees are principally employed as excavator drivers or operators, the three employees who voted do not have a sufficient interest in the terms of the Agreement.

1. The deficiencies in the Agreement cannot be remedied by undertakings. For example, any proposed undertakings to the effect that only "Excavator Operators" would be employed, would result in substantial changes to the Agreement, as the vast majority of classifications in the Agreement would serve no purpose.

• [17] At hearing, the parties put forward relevant authorities they seek to rely on in respect of their positions. Section 176 of the Act sets out the relevant criteria that must be satisfied by the Applicant in the present matter. They are that at least one of the employees who will be covered by the Agreement must be a member of the CFMEU,[5] that member must not have appointed another person as their bargaining representative or have revoked the CFMEU as their default bargaining representative[6] and the CFMEU must be entitled to represent the interest of that member or members in relation to the work that will be performed under the Agreement.[7]

• [18] As stated above, the AWU, asserts that it has a right to be heard. On the basis of the material and arguments presently before me,[8] I accept that the AWU has a right to be heard. If I am wrong on that, then I rely on the Commissions powers to inform itself.[9]

• [19] I accept the submissions of the AWU that there is a jurisdictional fact that must be resolved in the first instance.[10] On 20 December 2023, my chambers wrote to the parties asking the CFMEU to provide a confidential list of its members and asking the Employer for a list of its employees, both at the relevant time the Agreement was made. Upon receipt of the responses from both parties I am satisfied that the CFMEU has a purported member. I am also satisfied that such purported member is engaged as an Excavator Operator, on the basis of the uncontested statement of Mr Nathan Stewart, Managing Director of the Employer.[11]

• [20] Whilst I note the CFMEUs submissions that suggest the Commissioner in John Holland[12] was "content to treat Excavator Operators as falling within the CFMEU rules and the AWU did not argue otherwise"[13], I disagree with this proposition. In John Holland the Commissioner expressed the view that whilst the AWU did not concede Excavator Operators did fall within the CFMEU FEDFA rule, he noted that in another of their submissions they did not describe them as being in contest. He further noted that excavator drivers were specifically identified as occupations falling within the FEDFA rule and that he was prepared to count them into his calculations for the purposes of checking whether in doing so, the CFMEU would reach a majority position in respect of the Greenfields Agreement that was before him for approval.[14] He later found that even where he did include them, they still did not reach the majority required and so dismissed the application.[15] Further, in that decision however, the Commissioner noted that he was cognisant of a recent Full Court decision at that time that endorsed an approach in interpreting the application of the FEDFA rule. That is that roles needed to be construed as a descriptor occupationally[16] and also in terms of the purpose of employment and the organisation of the work of the employer[17] and noted that this was the basis that the AWU did not concede excavator roles, "even though they are specifically mentioned in the rule".[18] Relevantly, the Full Court decision to which he referred, noted that an employee will not be "a 'forklift driver' within the meaning of rule 2(E)(a) 'merely because he drives a forklift in order to do what he is employed to do."[19]

• [21] Therefore, I am required to turn my mind to the occupational role of the excavator operator as well as the purpose of the employment of the excavator operator in this case specifically working on the Gold Coast Light Rail Stage 3 Project (Project) and the organisation of the work of the employer (Advanced Civil Group Pty Ltd).

• [22] In respect of the purpose of the employment, I note the submissions of the AWU which I will set out here for completeness:

"8. The GoldLinQ Pty Ltd (GoldLinQ) website[20] describes the "Gold Coast Light Rail

Stage 3: Broadbeach to Burleigh Heads" in the following way:

"Gold Coast Light Rail (GCLR) has transformed public transport on the Gold

Coast, helping create an integrated network that connects more people to more

places in one of Australia's most dynamic and fastest growing cities.

The Queensland Government, in partnership with the Australian Government and the City of Gold Coast is delivering Gold Coast Light Rail Stage 3 (GCLR3), extending the light rail network by 6.7 kilometres from Broadbeach to Burleigh Heads.

The Gold Coast light rail system will be delivered in stages to respond to the growth of the Gold Coast. Stage 3 will expand the tram network to 27 kilometres from Helensvale to Burleigh Heads."

"GCLR3 is split into nine construction zones to assist with planning and delivery of works. Within each of the nine zones, the five phases of light rail construction will occur.

Construction will take place across five distinct phases. Each phase brings a unique set of changes to surrounding communities, businesses, road users, pedestrians, bicycle riders and visitors.

Areas along the light rail corridor may be in different phases of construction at any one time.

The project team will keep the community informed of upcoming construction activities and potential impacts"

10. Clause 4 of the Building and Construction General On-site Award 2020 (BCGO

Award) "Coverage" says the following at 4.1 and 4.2:

"4.1 This industry award covers employers throughout Australia in the on-site

building, engineering and civil construction industry and their employees in the classifications within Schedule A - Classification Definitions to the exclusion of any other modern award.

4.2 For the purpose of clause 4.1, on-site building, engineering and civil

construction industry means the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken onsite."

11. Relevantly, clause 4.3(a) of the BCGO Award defines "general building and

(i) the construction, alteration, extension, restoration, repair, demolition or

dismantling of buildings, structures or works that form, or are to form, part of

land, whether or not the buildings, structures or works are permanent and

maintenance undertaken by employees of employers covered by clause 4.1 of

(ii) site clearance, earth-moving, excavation, site restoration, landscaping and

the provision of car parks and other access works associated with the activities

(iii) the installation in any building, structure or works of fittings and services;"

12. Clause 4.3 (b) of the BCGO Award defines civil construction as follows:

(i) the construction, repair, maintenance or demolition of:

(x) railways, tramways, roads, freeways, causeways, aerodromes, drains, dams,

weirs, bridges, overpasses, underpasses, channels, waterworks, pipe tracks,

tunnels, water and sewerage works, conduits, and all concrete work and

13. By reason of clause 4.3(b) of the BCGO Award and based on the description of the

work being performed on the GCLRS3 Project, the Proposed Agreement covers

14. This is further supported by "Appendix B: Classification Structure and Level

Descriptions" of the Proposed Agreement -- which puts beyond doubt that the

classifications apply to "employees performing work of the nature of Civil

"Appendix B: Classification Structure and Level Descriptions

The Civil Worker (CW) classifications will apply to Employee(s) performing work of the nature of Civil Construction who are engaged in the classifications set out below and are employed to perform the works set out in this Agreement."

16. Finally, in _Re John Holland Queensland Pty Ltd,_4 in dismissing an application for

approval of a Greenfields agreement for work being performed on the GCLRS3 Project, the Commission observed that:

"317. ...the project is itself clearly a civil construction and light rail project on the Applicant's evidence."[22][23]

• [23] In consideration of these factors, I am satisfied that the purpose of the work of the relevant employee/purported member, is to perform civil construction work specifically to construct a light railway. That is sufficient to satisfy me that the Applicant is not eligible to represent the industrial interests of the employee/purported member covered by the Agreement and I must dismiss this Application. To be clear, in consideration of the organisation of the work of the Employer (Advanced Civil Group Pty Ltd), I note that the Form F17 Declaration completed by the Employer, lists its primary activity as "Earthmoving" and I note that the name of the Employer incorporates the word "Civil". In consideration of these factors and in the absence of any evidence being put before the Commission in the alternative, I am satisfied that the organisation of the work of the Employer is civil work. The primary purpose of employment of the purported member is not that of an excavator driver taking into account the nature of the work performed, the context in which it is done, the industry in which it is done and the operations of the Employer.[24]

• [24] Given my conclusions above it is strictly unnecessary to deal with the remaining objections however for completeness I would not have found the NERR contained a minor procedural error capable of approval by exercising my discretion under s.188(5) of the Act given the NERR referred to the whole of Queensland given that the Agreement was specifically limited to application on the Project.[25]

Mr Luke Tiley of Hall Payne Lawyers for the Applicant/CFMEU.

[1] CFMEU Submissions dated 7 November 2023 [5]; Digital Court Book p. 33.

[2] Fair Work Act 2009 (Cth) s.188(2)(a).

[3] Ibid s.188(2)(b).

[4] [2022] FWC 1524 at [55].

[5] Fair Work Act 2009 (Cth) s.176(1)(b)(i).

[6] Ibid s.176(1)(b)(ii).

[7] Ibid s.176(3),

[8] Australian Workers' Union submissions of 22 September 2023, [4]-[19] and [20].

[9] Fair Work Act 2009 (Cth) s.590.

[10] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 [17].

[11] Statement of Mr Nathan Stewart dated 7 November 2023, [4]; Digital Court Book p. 29.

[12] John Holland Queensland Pty Ltd [2022] FWC 1524, [55] (John Holland).

[13] CFMEU submissions dated 7 November 2023 [4(a)]; Digital Court Book p. 33.

[16] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 [42].

[19] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 [45].

[20] https://www.gclr3.com.au/goldlinq/gclr3

[21] https://www.gclr3.com.au/goldlinq/gclr3/map?mapView=categorySelectorConstruction

[23] Australian Workers' Union submissions of 22 September 2023, [8]-[16].

[24] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 [42]-[45].

[25] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 [117].

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