s.185 - Application for approval of a single-enterprise agreement

North-Vic Constructions Pty Ltd Trading AS Nvc Precast

Application for approval of the North-Vic Constructions Pty Ltd (Trading as NVC Precast) Enterprise Agreement 2025 - Powers of the FWC to inform itself under s 590

• [1] On 30 September 2025 North-Vic Constructions Pty Ltd ("NVC") made an application for the approval of a single enterprise agreement known as the North-Vic Constructions Pty Ltd (Trading as NVC Precast) Enterprise Agreement 2025 (the Proposed Agreement).

• [2] By an e mail dated 23 October 2025 Mr. David Vroland, the Head of Legal of the Victoria/Tasmanian Branch of the Construction and General Division of the CFMEU confirmed that "we will seek to be heard in opposition to the application in these proceedings".

• [3] On 28 October 2025, at a mention hearing, NVC through its legal representative Mr. Stephen Crilly of Seyfarth Shaw confirmed it opposed the Commission exercising its power under s 590(2)(b) to invite submissions from the CFMEU. At that hearing the CFMEU were represented by Mr. Declan Murphy of Counsel, together with Mr. Vroland. I subsequently issued directions and received submissions from both NVC and the CFMEU on that question.

• [4] For the following reasons, I have decided to exercise my discretion to invite submissions from the CFMEU on this application under s 590(2)(b).

Anticipated submissions should the CFMEU be invited under s 590

• [5] CFMEU argue the material NVC has filed gives rise to a "serious question" whether the proposed agreement was genuinely agreed and whether NVC took all reasonable steps to ensure the proposed agreement was properly explained. It elaborates the bases of this "serious question" as follows:
  • A "critical factual question" is whether NVC provided sufficient information concerning the substitution of the Building and Construction General On-Site Award 2020 (On-Site Award) with the Concrete Products Award 2020 (CPA). A snapshot of the On-Site Award, as at 10 December 2021, was incorporated in the predecessor of the proposed agreement, the North Vic Constructions Pty Ltd Enterprise Agreement 2022 (the 2022 Agreement). The different incorporated award would "significantly alter" several entitlements.
  • NVC may not have provided a reasonable opportunity for employees to consider the proposed agreement because there is some doubt that a full copy of the new incorporated award was provided to the employees.
  • There is some doubt NVC adequately explained the differences between the On-Site Award and the CPA. It is "unclear" whether a table of the differences between the Awards was provided to employees or whether they were given an oral explanation. The CFMEU also casts doubts on the accuracy of the explanations within the table.
  • There appears to be no explanation of the "fundamental shift" in the definition of redundancy by reason of the change from the On-Site Award to the CPA.
  • The proposed agreement "would abolish a mode of employment", namely daily hire, "but no explanation of the effect of this change is apparent from any of the written materials"

• [6] These "widespread omissions" demonstrate that a contradictor will assist the Commission in discharging its statutory functions. The application gives rise to questions regarding the omissions, their materiality and their impact on the issues of "genuine agreement" and "all reasonable steps"

• [7] The s 590(2)(b) discretion is frequently exercised to enable the Commission to hear from unions who were not bargaining representatives.[1] The CFMEU argue the Commission should exercise the discretion in its favour because:
  • It is "expert" in the history and operation of the On-Site Award. It is well placed to assist the Commission in a comparison between the On-Site Award and the CPA to ascertain whether NVC explained the difference between them.
  • It is capable of assisting the Commission in the application of the statutory provisions relevant to the making of an enterprise agreement including the obligations of an employer to explain the effect of enterprise agreements to employees.
  • It has constitutional coverage of persons employed by NVC and standing to appeal a decision to approve an agreement as a "person aggrieved" under s 604.

• [8] There are three bases on which a union may be heard on an application for approval of an enterprise agreement:

• • If the right to be heard is required in the interests of fairness in the circumstances.[2]

• The Commission has a broad discretion to inform itself in relation to a matter is it sees fit under s 590.

• [9] The CFMEU "bears the burden" of satisfying the Commission: whether it is a bargaining representative; has a right to be heard in the interests of fairness or; that I should otherwise exercise my discretion under s 590. The CFMEU bears the "risk of failure" if I do not make a decision to hear it.

• [10] The CFMEU has taken no steps to establish it is a bargaining representative. It has not made any submissions that procedural fairness requires it to be heard.

Capacity to appeal is not a legitimate argument for the exercise of the s 590 discretion.

• [11] NVC takes issue with the CFMEU argument that it should be heard because of its standing to appeal the approval of the proposed agreement. The "unstated conclusion" is that if the matter might otherwise simply be dealt with on appeal, the union should simply be heard in the first instance. This should not be accepted because:

• The test for a person aggrieved with standing to appeal under s 604(1) is different from the test the Commission should apply in a decision whether to exercise its discretion when the CFMEU have no right of appearance.
  • The capacity of the CFMEU to bring an appeal ignores the step of permission to appeal being granted. It also ignores that quashing a decision to approve an agreement must rest on an error by the Commission in the discretionary question of reaching the state of satisfaction as required by s 186(2).

• • The Commission should not be "swayed by an intimation that an unsuccessful party may appeal against its decision because that is always a possibility". The Commission was not swayed in Re Kentech Australia Pty Ltd.[3]

• [12] The discretion under s 590 is broad but not unconstrained. This power must be considered through the prism of the requirements under s 577 for the Commission to exercise all powers in a manner which is fair and just, quick and informal and avoiding unnecessary technicalities and open and transparent.

• [13] A useful analogue for the approach to the exercise of the s 590 discretion is the test for leave being given to amicus curiae. I should be satisfied I would be significantly assisted by the CFMEU submissions and the cost and delay as a result of the hearing of the amicus "would not be disproportionate to the assistance".[4]

• [14] Decisions on s 590 have focussed on the value of a union in uncontested proceedings as a contradictor. Sometimes there is little or no value in submissions from a contradictor and a decision to insert a contradictor would be inconsistent with the Commission dealing with the matter in a fair, just, quick and informal manner in circumstances where the employer and the employees may face delays in knowing whether the agreement will be approved. NVC argues that this case is of the second kind.

• [15] The issues CFMEU seek to raise have already arisen in the proceedings in correspondence between the Commission and NVC. On the basis of the material NVC has provided to the Commission, it may or may not be satisfied NVC has complied with its obligations, but the Commission has the material to assess the matter.

• [16] On the issue of whether or not copies of the CPA were provided to the employees, the employer has provided the Commission with a letter NVC sent to its employees dated 29 September 2025 which provided "any referenced material (i.e. the "Model" Award) will be made available on required or can be accessed via www.fwc.gov.au."

• [17] NVC reiterates the Commission has the material to decide whether to approve the Agreement, applying the test in paragraph 4 of the Statement of Principles on General Agreement. It argues the Commission is well placed to decide these matters. It then relies on authorities where the CFMEU has failed to demonstrate any compelling reason under s 590 that it should be heard.

• [18] As an alternative to refusing leave, NVC argues I should limit the CFMEU's leave to be heard to submissions on the provision of incorporated material, and on the explanation of the proposed agreement, and the consequence of those matters for whether the agreement was genuinely agreed. It argues limited leave is an orthodox course in amicus decisions and the Full Bench has taken no issue with limited leave being granted in CFMMEU v. Precast Pty Ltd.[5]

• [19] CFMEU responded to NVC's limited leave submission. It argues that "at least initially it should be provided with all materials and be permitted to address any matter of apparent importance. At that point, the Commission can then make an informed decision about whether it would be better assisted if the bases on which the CFMEU is permitted to intervene would be restricted"

• [20] Under s 590 I can inform myself on a matter before me "in such a manner that I consider appropriate". One of the methods I can inform myself is to invite a party, who may not have a right to be heard, to make submissions to assist me under s 590(2)(b). I accept NVC's proposition that I should apply this discretion in a manner consistent with the general requirements for the performance of my functions prescribed by s 577.

• [21] The CFMEU was not a bargaining representative for the proposed agreement. It does not assert it has a member who will be covered by the proposed agreement. The basis of its application is that it has constitutional coverage to represent the industrial interests of employees who will be covered by the proposed agreement, and it has particular expertise in the "history and operation of the CPA and the On-Site Award" and can assist the Commission in the application of the provisions with respect to enterprise bargaining.

• [22] The Full Bench in CFMEU v. Collinsville Coal[6] made the following observation on the s 590 discretion:[7]

"... the Commission may choose in a particular case, 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 broad power to inform itself in relation to any such manner as it considers appropriate including by inviting oral or written submissions from a person or organisation. In this case the Senior Deputy President chose to exercise that power by permitting the CFMEU to be heard on the question of whether the Agreement passed the BOOT."

• [23] There are aspects of the proposed agreement which are unusual. The circumstance where the incorporated and underpinning Modern Award will change from the On-Site Award, which was incorporated in the 2022 Agreement, to the CPA which will be incorporated into the proposed agreement, invites particular scrutiny of the information provided to workers in the process of making the proposed agreement. This would include scrutiny of the material provided to employees who were entitled to vote, and the explanation of the terms of the agreement and their effects as required by s 280(5).

• [24] I do not accept NVC's submission that the alignment of the matters I raised in correspondence with NVC and those raised by the CFMEU in this application counts against exercising my discretion to grant the CFMEU leave because "the Commission has the material it needs to assess this matter".

• [25] The fact the aspiring contradictor raises matters I have raised supports the exercise of the discretion. The assistance of a contradictor may inform my assessment of compliance with the Act on the matters on which I have raised concerns. Deputy President O'Keefe accepts this proposition in Acciona where he states: "...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 Unions - the FWC's role in ensuring the requirements for approval are rigorously observed will be assisted by the input of those parties."[8]

• [26] It is inevitable the invitation of the CFMEU to make submissions will lead to delay and cost for NVC. It is, however, in the interests of justice that the decision I make with respect to proposed agreement is based on sound reasoning. This is assisted by arguments put by a contradictor in the circumstances of this case.

• [27] I am therefore satisfied it is appropriate for me to exercise my discretion to allow the CFMEU to be heard on the approval of the Agreement. Given I have decided to invite the CFMEU as a contradictor I do not propose to limit the matters on which it can make submissions. I am alive, however, to the cost and delay to NCV because of my decision to invite submissions from the CFMEU. I would caution it against a "burger with the lot" approach to its submissions.

• [28] A notice of listing for a mention will be sent to NVC and the CFMEU where the matter will be programmed including for a hearing if necessary.

[1] CFMEU sites three examples in support of this proposition CFMEU v. Collinsville Coal Operations Pty Ltd [2014] FWCFB [48],[75]; SRG v. Broome Marine Tug [2021] FWC 2318; Application by Acciona Construction Australia Pty Ltd [2025] FWC 21.

[2] Mechanical Maintenance Solutions Pty Ltd [2019] FWCFB 3583 [18].

[3] [2019] FWC 6269.

[4] Roadshow Films v. iiNet Ltd [2011] HCA 54, 248 CLR 37 [6].

[5] [2019] FWCFB 1431.

[6] CFMEU v. Collinsville Coal Operations Pty Limited [2014] FWCFB 7940.

[8] Application by Acciona Constructions Australia Pty Ltd [2025] FWC 21 [25].

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