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EBA claim dismissed

A CONSTRUCTION Forestry Mining and Energy Union attempt to force an enterprise bargaining agreement onto a Perth employment hire firm and have it charged with unfair dismissal has failed in the Western Australian Industrial Relations Commission.

WAIRC commissioner Jack Gregor ruled that the unfair dismissal claim made by two workers against Tricord Personnel was outside the commission’s jurisdiction because the men were independent contractors who had no employment relationship with the labour hire firm. Neither did the commission have jurisdiction over the enterprise order the CFMEU wanted to impose on Tricord, Mr Gregor said.

Under WA’s new industrial relations laws if a union or an employer does not think that the other side is bargaining in good faith they can ask the WAIRC to arbitrate an EBA that becomes the enterprise order. 

In a recent case involving Hanssen Pty Ltd, the CFMEU sought an enterprise order that mirrored its EBA.

Because Hanssen proprietor Jerry Hanssen did not offer any defence at the hearing, also presided over by Mr Gregor, the commission awarded the CFMEU’s EBA as the enterprise order.

That EBA involved things such as a 36-hour week.

The enterprise order decision is being appealed and is scheduled to be heard on December 9.

Mr Hanssen won an interim stay order last month that effectively lifts the enterprise order until the appeal is heard.

Tricord is one of Mr Hanssen’s suppliers.

Tricord director Peter Wieske said the matter had come about because it had sent a contractor to one of Mr Hanssen’s sites.

“At the end of two weeks’ work we put him off,” he said. “He went to the union and it tried to serve an unfair dismissal finding on us.”

Mr Wieske said the company had objected to both the enterprise order and the unfair dismissal charges because it felt the commission had no jurisdiction to hear them.

“Effectively the commissioner has said the union can’t force an EBA on us,” he said.

CFMEU lawyer Tim Kucera said the commissioner’s finding meant the union could not progress with its enterprise order.

“They objected on jurisdiction grounds and the commissioner found that the workers were independent contractors,” he said.

Meanwhile, the CFMEU continues to maintain a presence on Mr Hanssen’s work sites.

Mr Hanssen said he complained to CFMEU secretary Kevin Reynolds about a recent visit from the union’s assistant secretary Joe McDonald and union organiser Mick Buchanan to one of his sites.

Mr Reynolds could not be contacted and Mr Kucera said he was unaware of Mr Hanssen’s complaints.

He did say, however, that the union would be vigorously opposing Mr Hanssen’s appeal.

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