Application by Bauer Foundations Australia Pty Ltd; Application by MGI Piling (NSW) Pty Ltd; Application by Avo Piling Management (NSW) Pty Ltd; Application by Wagstaff Piling Pty Ltd; Application by Piling Contractors Pty Ltd [2015] FWC 7345 (23 November 2015)

(#P313_18132) We note that in CEPU and AMWU v Main People Pty Ltd [2014] FWCFB 8429 a Full Bench of the Commission determined that a right to represent employees under the terms of the agreement and the likelihood that members of the appellant unions would in the future be employed under the agreement resulted in the appellants having standing to institute the appeal as those factors gave the appellants an interest beyond that of an ordinary member of the public. We would observe that in the context of the statutory scheme established for agreement making and approval, the question whether a person should be heard during an application to approve an agreement is a different question whether a person is aggrieved by a decision for the purposes of bringing an appeal. For the reasons set out at [70] of our decision, we do not regard the possibility or even likelihood that members of an employee organisation might in the future be employed under the agreement as grounding a right to be heard. Nor does that fact that employees covered by an agreement might choose to be represented by the employee organisation under particular terms of the agreement give rise to a right to be heard. The right of representation under the terms of an agreement resides with the employee, not the organisation or person selected by the employee to provide representation.

(#P314_20732) Transcript PN68 - PN71

(#P321_21291) Section 228

(#P324_21365) Section 236

(#P327_21520) Section 229

(#P330_21574) Section 238

(#P333_21640) Section 242

(#P336_21720) Section 185

(#P339_21904) Section 183

(#P342_22574) Section 176(1)(b), (c) and (4)

(#P345_23295) See section 201(2)

(#P352_24392) Section 590(1) and (2)(b)

(#P355_24751) Transcript PN134 - PN139

(#P364_27097) See section 481

(#P365_27259) See section 484

(#P370_28044) Transcript PN155 - PN157

(#P377_30198) Enterprise Flexibility Agreements Test Case May 1995 (1995) 59 IR 430 at 451

(#P380_31031) See CFMEU v Hamberger and Anor [2011] FCA 719; (2011) 195 FCR 74 in which Katzmann J discusses the meaning of "will be covered" in s.172 of the Act and concludes at [69]-[79] that persons not yet employed but who might in the future be covered by an agreement are not within the class of persons "who will be covered"; See also Mermaid Marine Vessel Operations Pty Ltd v MUA [2014] FWCFB 1317 at [73]- [74] and CBI Contractors Pty Ltd v CFMEU [2011] FWAFB 7642 at [22]- [23]

(#P387_33684) Section 590

(#P468_39745) Exhibit C2 Annexure P

(#P500_41503) Exhibit C2 Annexure Q

(#P510_42481) MA000020

(#P517_43463) [2010] FWAFB 3510

(#P532_48287) Ibid at para 54.

(#P538_49103) [2009] FWA 1442

Printed by authority of the Commonwealth Government Printer