LESS than one month after having an enterprise order made on Perth builder Jerry Hanssen, the Construction Forestry Mining and Energy Union has tried to have one put on one of his main labour suppliers.
Tricord Personnel had refused to sign a CFMEU enterprise bargaining agreement.
It operates under the Odco system – an arrangement that means it does not have any employees. It has no employment relationship with the workers it sends out to its clients. Those workers are contractors in their own right. The CFMEU began proceedings to have an enterprise order served on Tricord Personnel in the Western Australian Industrial Relations Commission on September 12.
Commissioner Jack Gregor is yet to file his judgement on the case.
Mr Hanssen is offering Tricord support.
Tricord Personnel director Peter Wieske said his company was fighting the enterprise order on the grounds that the WAIRC does not have the jurisdiction to deal with the matter.
“Tricord is set up under the Odco system,” he said.
“The question will really be how Mr McGregor identifies the new definition of an employer in the legislation.”
Mr Wieske said the CFMEU went after both his company and Mr Hanssen’s at the same time.
He said the union was also pursuing his company for what it claims was the unfair dismissal of one of its members.
WA’s new industrial relations laws allow unions to approach the WAIRC and ask it to arbitrate an outcome if the employer has not been bargaining in ‘good faith’.
That arbitration becomes an enterprise order and can be drawn from the union’s EBA.
In the Hanssen case the CFMEU’s draft EBA, which includes a 36-hour week, became the enterprise order.
Mr Hanssen has appealed the WAIRC’s decision and was seeking a stay order on the enterprise order when WA Business News went to press.
A stay order effectively removes the enterprise order from his business until the appeal is heard.
Mr Hanssen said he was confident the enterprise order would be overturned on appeal.
“We have about 11 reasons why the enterprise order appeal should win,” he said.
“The order has had no real effect on me anyway.”
CFMEU lawyer Tim Kucera said the union’s organisers had continued to go onto Mr Hanssen’s building sites and identify safety issues.
However, when the CFMEU launched its strike action earlier this month that closed several CBD building sites, Mr Hanssen’s sites were still working.
There had been some questions in legal circles over how the enterprise order would affect Mr Hanssen’s business because he does not have any employees.
All of his workers are drawn either from labour hire firms or through subcontracting arrangements.
Mr Hanssen said there was no way he could legally apply the terms and conditions set down in the enterprise order to his subcontractors.
There have been some suggestions, however, that WA’s new IR laws treat some subcontracting relationships as if they were employment relationships.
It can be argued that if a business uses the same subcontractors regularly, that relationship can be considered to be an employer-employee one.
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