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Master Builders SA
September 2018
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Greater interstate influence likely after senior South Australian CFMMEU official resigns
Greater interstate influence likely after senior South Australian CFMMEU official resigns
It has been reported that senior CFMMEU official and former deputy secretary, Jim O’Connor, has resigned from the union’s South Australian branch. The resignation follows the departure of the former SA secretary, Aaron Cartledge, and the branch’s industrial officer.

The departures pave the way for greater influence from CFMMEU interstate officials in South Australia, and a more militant approach to industrial relations in this state. Currently, the SA branch is under the control of Queensland official, Andrew Sutherland, who was appointed following intervention from the union’s national executive.

The increased intervention from the union’s national and interstate branches, together with the prospect of a Bill Shorten-led government from next year, have the potential to cause harm to the state’s construction industry. This is of concern, particular at a time where the state government has made a significant commitment to infrastructure spending over the next four years.

The influence of the powerful CFMMEU interstate branches is evident from enterprise agreements that have been negotiated for large projects in Victoria and Queensland. In particular, it has been reported that labourers working on the West Gate Tunnel Project and Melbourne Metro Tunnel in Victoria will earn an average wage of $150,000 per year, and carpenters working on the Queen’s Wharf project in Queensland will earn up to $288,500 per year. While larger economies may be able to better absorb exorbitant and disproportionate labour costs such as this, it is likely that any similar trend in South Australia would cause significant harm to the industry, and the economy generally.

The Master Builders SA IR Team can assist members with all union and industrial relations issues, including enterprise bargaining, industrial action, right of entry disputes, and compliance with the Building Code 2016. 
Unfair dismissal? Representation for members
Unfair dismissal? Representation for members
The Master Builders SA IR Team can represent your business in relation to employee claims including unfair dismissal, general protections and underpayment of wages. We have extensive experience with these matters and can provide pragmatic, commercial advice to minimise the cost to your business, and represent you at conciliation conferences and hearings. Contact us today on 8211 7466 to find out more.
Members legal advice service
Members legal advice service
Master Builders SA is pleased to offer members a free face-to-face initial legal advice service for construction law matters. This service is provided by experts from leading South Australian construction law firm Fenwick Elliott Grace.

Members can seek advice in respect of a number of issues including contracts, disputes, industry specific matters, tenders and security of payment.

This service is available on the first Monday of each month at Master Builder SA, Level 1, 47 South Terrace Adelaide.

Contact the Industrial Relations Team on 8211 7466 to book your 20 minute session.
Commission denies application to vary ‘ambiguous’ scope clause in agreement
Bianco Walling Pty Ltd T/A Bianco Precast [2018] FWC 5823 (17 September 2018)

The Fair Work Commission (FWC) has denied an application to vary an enterprise agreement to remove an alleged ambiguity or uncertainty in the agreement’s scope clause, leaving the employer exposed to claims by award-covered employees that they are covered by the terms of the agreement.

In dismissing the application, the FWC found that despite the parties’ clear intention for the agreement to cover employees in one division of the business only, the wording of the scope clause meant that the agreement could in fact potentially apply to employees in the other divisions of the business.

The scope clause in agreement which the company claimed was uncertain and ambiguous states that:

This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco employees that are engaged in the classifications contained in this agreement who work in Bianco’s concrete manufacturing operations, including the erection of these products on-site and the installation of props and frames (employees).”

The company sought to vary the agreement to replace the words ‘concrete manufacturing operations’ with ‘pre cast division’ following a claim made by the CFMMEU that the agreement applied to an employee working in the company’s structural division, who was employed under the terms of the Concrete Products Award 2010. While the pre-cast, structural and civil divisions of the business are distinctly separate and each perform different work, the FWC confirmed that the products manufactured by all three divisions are products manufactured of concrete.

The CFMMEU was not a party to the agreement but was granted leave to participate in the hearing and claimed there was no ambiguity or uncertainty in the scope clause. The CFMMEU argued that any employees employed in the relevant classifications who work in concrete manufacturing operations are covered by the agreement irrespective of the division they work in.

In considering the application, the FWC examined the drafting of the scope clause and found that despite the presence of an interpretation dispute, the ordinary meaning of the phrase ‘concrete manufacturing operations’ is not uncertain or ambiguous and plainly means “business operations in which concrete products are manufactured”. The FWC stated it was “far from satisfied that Bianco’s concrete manufacturing operations are simply equated to the operations of its pre-cast division”.

The FWC acknowledged that the intention and practice of the agreement (as well as each of the four predecessor agreements) was for the agreement to apply only to employees in the pre-cast division. However, due to the finding of no ambiguity or uncertainty in the wording, the FWC declined the company’s request to rewrite the scope clause to give effect to the common intention.

While the FWC did not specifically determine if employees outside the pre-cast division are covered by the agreement, the decision leaves the company exposed to claims by employees or the union seeking entitlements under the terms of the agreement. The implications of this are potentially significant, especially if employees are found to have existing entitlements that could be owed to them.

This case highlights the importance of ensuring carefully drafted agreements with clear wording that gives effect to the intention of the parties. If an agreement clause has a disputed interpretation but the words are found to have a plain meaning so that there is no ambiguity or uncertainty, the FWC will generally decline any request to vary the agreement.

The decision has been appealed to a Full Bench of the Fair Work Commission.
FREE IR evaluation
FREE IR evaluation
Master Builders SA offers free industrial and workplace relations evaluations to members to assist your business to comply with continually changing and complex workplace laws. Contact us today on 8211 7466 to arrange a comprehensive review of your business' employment practices.
Enterprise Agreements
It is important for businesses to ensure that they are covered by enterprise agreements that are current. If you don't have a current enterprise agreement in place, contact the Industrial Relations Team on 8211 7466. We can assist with preparing new agreements and reviewing and updating existing agreements
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