AN enterprise order served on Perth builder Jerry Hanssen on August 15, that follows the Construction Forestry Mining and Energy Union’s draft enterprise bargaining agreement to the letter, could have a major impact on non-unionised medium-sized businesses.
Some industrial law experts say the decision makes any non-unionised medium-sized business open to having an EBA forced on them.
Enterprise orders were introduced into Western Australia’s industrial laws last year and allow parties to ask the WA Industrial Relations Commission to arbitrate an out-come if EBA negotiations have broken down.
Mr Hanssen rejected approaches from the CFMEU to negotiate an EBA on his building sites and ended up before the WAIRC at an enterprise order hearing.
He made no submissions to the commission regarding the order and took no legal representation. As a result of his failure to mount any argument against the order, commissioner Jack Gregor ruled that the CFMEU’s draft EBA, which includes a 36-hour week, forms the enterprise order.
The matter is being appealed and this time Mr Hanssen has sought legal representation, appointing Jackson McDonald partner David Sash.
He said the CFMEU’s reasons for the enterprise order included a failure to appoint a shop steward, failure to make contributions to the union’s training fund, failure to take out trauma insurance and for hiring subcontractors that had not executed an EBA with the union.
Master Builders Association industrial relations manager Kim Richardson said the ruling indicated that the commission treated employer silence as consent to a union’s EBA.
“The consequences of this don’t just apply to the building industry. It applies to all other employers,” he said.
“This could destroy small businesses.”
Jackson McDonald partner Maria Saraceni said a lot of employers could get hurt by enterprise orders.
“The lesson from this is when you get a letter from the union you’d better do something and not just ditch it in the bin,” she said.
“The commission is telling employers that they have to deal with the union. The concept of freedom of association is being washed under the carpet.”
Opposition workplace relations spokesperson Cheryl Edwardes said the commission’s decision was an indictment of the Government’s IR laws.
“If you don’t want to deal with the union, this allows the WAIRC to force you to,” she said. “The only way for a business avoiding that is to go into the Federal IR regime.”
Consumer and Employment Protection Minister John Kobelke said the Government’s new IR laws were a major improvement in that they allowed the WAIRC to “resolve matters in a fair and equitable way”.
“That’s preferable to strikes and lockouts,” he said.
“It’s my understanding this particular order provides pay and conditions no better than what is offered to the majority of construction industry workers in the Perth CBD.”
Mr Kobelke said the enterprise order also included safety and health provisions in light of the uncontested evidence of poor safety standards on the Hanssen construction site.
There is confusion in the legal fraternity and with Mr Hanssen as to what the decision means.
Mr Hanssen said he did not have any employees, only subcontractors.
“I can’t see how I can legally enforce this enterprise order on my subcontractors,” he said.
Gadens partner Allan Drake-Brockman said if Mr Hanssen used the same subcontractors the union could run an argument that they were not subcontractors.
CFMEU assistant secretary Joe McDonald said that despite some day labour hired from Troubleshooters Australia and from subcontractors that had signed an EBA with the union, the other workers on the site were employed by Mr Hanssen.
Mr McDonald said the CFMEU would consider using enterprise orders on other non-EBA builders such as BGC.
“We’re going to use it [an enterprise order] on any State respondents that we can,” he said.
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