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[15]
[2021] FWC 2318
General information, not legal advice.
Fair Work Commission
2021-04-27
Original judgment source is linked above.
s.185 - Enterprise agreement
Application for approval of a single-enterprise agreement - standing of unions to be heard in relation to application.
[1] On 23 September 2020, Broome Marine and Tug Pty Ltd (Broome Marine) filed an application (Application) with the Fair Work Commission (the Commission) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act) for approval of the Broome Marine Enterprise Agreement 2020 (the Agreement).
[2] On 23 November 2020 a decision[1] was issued by Commissioner Williams approving the Agreement (the Approval Decision). The Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU) and the Australian Maritime Officers Union (AMOU) subsequently sought permission to appeal and appealed the Approval Decision of Commissioner Williams. In a decision[2] issued on 23 March 2021 a Full Bench upheld the CFMMEU and AMOU appeal, quashed the Approval Decision and remitted the application for approval of the Agreement to me for reconsideration (the Appeal Decision).
[3] Following remittal of the matter, a Mention/Directions Hearing was conducted on 6 April 2021 following which the parties were issued with Directions requiring Broome Marine, the CFMMEU and AMOU to file materials and submissions in respect of the CFMMEU and AMOU's requests to be heard in relation to the application for approval of the Agreement. The CFMMEU and AMOU filed submissions on 13 April 2021 in support of their requests to be heard. Mills Oakley Lawyers, who were granted permission to appear on behalf of Broome Marine, filed submissions in reply on 21 April 2021 objecting to the CFMMEU and AMOU requests to be heard.
[4] There are four potential avenues by which an employee organisation might establish standing to be heard in relation to an application for approval of a proposed agreement:
(1) As a bargaining representative of one or more employees to be bound by the proposed agreement[3];
(2) As a matter of procedural fairness if the employee organisation is able to establish a right, interest or legitimate expectation that it will be adversely affected by the decision[4];
(4) On appeal, if the employee organisation can show a grievance, which will be suffered as a result of the decision complained of, beyond that of an ordinary member of the public[6].
[5] The fourth avenue is only available on appeal and not at first instance. The fact that an employee organisation may have a right of appeal against a decision to approve an enterprise agreement does not of itself create a right to be heard in relation to the Application at first instance.
[6] The CFMMEU and AMOU advanced the following arguments and circumstances in support of their application to be heard;
The CFMMEU and AMOU are eligible to represent employees employed in the marine towage industry as defined in the Marine Towage Award 2020 (the Award);
The CFMMEU has at least one member currently employed by Broome Marine whose employment will be subject to the proposed Agreement;
Both the CFMMEU and AMOU assert that some of Broome Marine's employees and prospective employees that will be employed under the Agreement are eligible to be members of the CFMMEU or AMOU;
Approval of the Agreement and its effects concern the CFMMEU and AMOU;
There was no union involvement in the bargaining and employees of Broome Marine were not previously covered by an enterprise agreement;
There is no support for approval of the Agreement from an employee bargaining representative in the form of a statutory declaration;
There is little probative evidence as to the steps taken by Broome Marine to explain the terms and effects of the terms of the Agreement to employees; and
There are concerns that the Agreement fails to meet the better off overall test (the BOOT) and also contains non-permitted matters.
[7] Broome Marine objects to the CFMMEU and AMOU being heard in respect of the Application and submit they have no standing to be heard, nor should the Commissions exercise its discretion to hear from them pursuant to s 590 of the Act for the following reasons;
The CFMMEU and AMOU were not bargaining representatives and the fact that they may or may not have members should not persuade the Commission to hear from them;
The CFMMEU and AMOU have not established any basis on which they have a "right, interest or legitimate expectation" in relation to the Agreement's approval;
Neither the CFMMEU or AMOU or its members would be directly affected by a decision to approve the Agreement and as such a denial of their request to be heard would not be a denial of procedural fairness;
The complaints raised in the submissions of the CFMMEU and AMOU regarding the Agreement and agreement making process were agitated before the Full Bench and largely disposed of;
While Broome Marine concedes there is no 'rule' as to when s 590 should be enlivened, the CFMMEU and AMOU have provided no authority upon which they rely to establish that the Commission should, in the circumstances, exercise its discretion to hear from them;
The absence of union involvement in bargaining or the fact that employees were not previously covered by an enterprise agreement is irrelevant and there is no evidentiary basis for the Commission to find that Broome Marine employees did not understand the process; and
The Commission is well placed to understand the agreement approval process.
[8] The avenue by which the CFMMEU and AMOU contend they should be heard in relation to approval of the Agreements is via s 590 of the Act. As such, it is unnecessary for me to deal with grounds (1), (2) and (4) set out above at [4] that might otherwise establish a right to be heard.
[9] Turning to the s 590, the Commission may, in the exercise of its powers under s 590 of the Act, choose to hear from an employee organisation about the approval of an agreement even though the employee organisation may not otherwise have a right to be heard[7]. Section 590 of the Act confers on the Commission a broad power to inform itself in relation to any matter before it in such manner as it considers appropriate, including (but not limited to) by inviting oral or written submissions from a person or organisation; by taking evidence under oath or affirmation; and by requiring a person to provide copies of documents or records[8].
[10] The CFMMEU and AMOU have a long history of industrial representation in the marine towage industry and the industrial right to represent Broome Marine employees who would be covered by the Agreement. As a consequence, they have a high degree of familiarity with the reference award, the work arrangements in the marine towage industry, and enterprise agreement terms and conditions similar to those contained in the Agreement. The CFMMEU and AMOU can provide a perspective independent of the proponent of the Agreement (Broome Marine).
[11] The CFMMEU and AMOU have identified potential issues in relation to whether the Agreement was genuinely agreed, whether the Agreement passes the BOOT and whether the Agreement contains non-permitted matters.
[12] I am not persuaded that particular matters raised by the CFMMEU and AMOU weigh in favour of my exercising my discretion to hear from them, those matters being the absence of union involvement in bargaining for the Agreement and the fact that it is Broome Marine's first enterprise agreement. However, I am satisfied that the CFMMEU and AMOU may provide information relevant to my deliberations as to whether the Agreement has been 'genuinely agreed', whether the BOOT is satisfied, whether the Agreement contains non-permitted matters and whether any undertakings are appropriate.
[13] By permitting the CFMMEU and AMOU to make submissions, lead any evidence which it does have and to cross-examine witnesses, the Commission can properly inform itself in relation to the matters which have been raised and satisfy itself that the requirements for the approval of the Agreement have been fully met. If, as Broome Marine assert, the CFMMEU and AMOU's concerns are without merit then this will be established by Broome Marine in the Commission's consideration of this Application.
[14] The Commission is required to ensure that the Proposed Agreement complies with the Act and the resolution of the concerns which have been identified should be conducted with transparency and appropriate rigor:
"Employee organizations with a legitimate interest in the industry and occupations covered by the Agreement may assist in the resolution of these issues of concern. In this way, a process involving open, diligent and comprehensive scrutiny should provide for the correct outcome, and also enhance the broader confidence in the Commissions enterprise agreement approval role."[9]
[15] In the particular circumstances of this matter, I am therefore satisfied that the CFMMEU and AMOU have established a basis upon which it should be invited to be heard. Thus, the CFMMEU and AMOU shall be entitled to be heard in respect to the application.
[16] The Commission will now proceed to consider the application. A further Mention hearing will be shortly listed for the purpose of programming, following which directions for hearing the matter will be issued.
[3] Section 176(1) Fair Work Act 2009 (Cth) and Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [16].
[4] CFMEU v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [72].
[6] Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64; CEPU and AMWU v Main People Pty Ltd [2014] FWCFB 8429; Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at footnote 13; and Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers' Union [2016] FWCFB 3370 at [15].
[7] CFMEU v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [75].
[8] Section 590, Fair Work Act 2009 (Cth).
[9] Inco Ships Pty Ltd [2016] FWC 1637 at [25].
Printed by authority of the Commonwealth Government Printer
(1981) 36 ALR 64