A Full Bench of the Fair Work Commission (FWC) has partially upheld the CFMMEU’s jurisdictional challenge on the Westgate Tunnel site allowance review. In a decision handed down in Sydney on 17 January 2019, the Full Bench has effectively determined that firstly, site allowance determinations made by the Victorian Building Industry Disputes Panel (Disputes Panel) pursuant to Appendix C of the CFMEU Pattern EBA 2016-2018 are not reviewable by the FWC; and secondly, that there was a question to be answered as to whether the Disputes Panel had jurisdiction under Appendix C to determine a site allowance for the Westgate Tunnel Project.
The finding by the Full Bench that site allowance determinations made by the Disputes Panel pursuant to Appendix C are not reviewable by the FWC is of particular interest, given that it was made contrary to:
- The original submission of the CFMMEU that they were reviewable (just not on a de novo basis);
- Evidence from Master Builders of the intent of the negotiating parties that they were reviewable (including specific changes made to Appendix C); and
- A recent Disputes Panel Statement, made in relation to a site allowance matter, in which the Panel reaffirmed that Employers are legally bound to comply with the terms of the applicable Enterprise Agreements and, subject only to the exercise of their rights of review, the Determinations made by the Panel pursuant to those Agreements.
It would appear that the Full Bench has arrived at the conclusion that neither the industry parties that negotiated the Agreement, nor the Disputes Panel who makes determinations in accordance with the Agreement (and its Charter), know how the Agreement actually operates.
Therefore, despite the fact that decisions of the Disputes Panel (including site allowance determinations) have hitherto been overwhelmingly accepted by the parties without seeking to exercise a right of review – the uncertainty caused by this latest FWC Full Bench decision appears to have ensured that site allowance will be a major area of focus for any future industry-led negotiations leading to a successor to the current CFMEU Pattern EBA 2016-2018.
The secondary question of whether Appendix C actually applies in relation to the Westgate Tunnel Project will now return to Vice President Masson for determination.
Members seeking further information are encouraged to contact the IR Department on (03) 9411 4560.