Fair Work Act 2009

s.185 - Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

Application for approval of the Griffiths Pty Ltd t-as Botany Cranes & Forklift Services / CFMEU Collective Agreement 2018 - application dismissed.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) made an application for approval of the Griffiths Pty Ltd t-as Botany Cranes & Forklift Services / CFMEU Collective Agreement 2018 (the Agreement) on 6 September 2018. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The employer that will be covered by the Agreement is Griffiths Cranes Pty Ltd T/A Botany Cranes & Forklift Services (the employer).

[2] The application was lodged on 6 September 2018 and was not accompanied by a Form F17 - Employer's Statutory Declaration in Support of an Application for Approval of an Enterprise Agreement (Form F17), a Notice of Employee Representational Rights (NERR) or a properly signed copy of the Agreement.

[3] The Commission contacted the CFMMEU in relation to the application noting that the relevant documentation had not been provided. On 13 September 2018 the employer's representative advised the Commission that the employer does not consent to the application, had not been properly consulted by the CFMMEU and does not agree to the terms of the Agreement. Further, that the employer had reason to believe that the Agreement had not been properly put to or accepted by the employees. Subsequently, the CFMMEU advised that it considered the Agreement was properly made, the pre-approval steps were complied with and that the employer has, after the Agreement has been made, determined for reasons unknown to the CFMMEU to not sign the Agreement or participate in the approval process.

[4] The matter was listed for Mention Hearing, by Telephone before me on 20 September 2018.

[5] Prior to the Mention Hearing the employer's representative filed written submissions with the Commission dated 14 September 2018. The employer submitted that pursuant to s.185(2) of the Act, a bargaining representative may only apply to the Commission for approval of an enterprise agreement if the application is accompanied by a signed copy of the enterprise agreement and that the employer had not signed a copy of the Agreement. On that basis the employer submitted that the application must fail where the prerequisite contained in s.185(2) of the Act has not been satisfied as there is no power or discretion for the Commission to approve an enterprise agreement when s.185(2) has not been satisfied.

[6] The employer also submitted that notwithstanding that the application must fail in the absence of a signed copy of the enterprise agreement, there is also no evidence submitted by the CFMMEU that the employer proposed the enterprise agreement as required by s.181(1) of the Act. The employer submitted that the CFMMEU has no entitlement under s.181(1) of the Act to propose an enterprise agreement to the employer's employees. On that basis, the employer submits no enterprise agreement has been made.

[7] At the Mention Hearing on 20 September 2018 it was agreed the employer's objection that the application is not accompanied by a signed copy of the Agreements is a threshold issue to be determined. Directions were issued for the filing submissions in relation to the threshold issue only.

[8] The parties agreed that the matter could be determined on the papers without the need for a hearing.

[9] The CFMMEU submit that what is to be determined is whether it is a condition precedent to the exercise of the Commission's jurisdiction to approve an enterprise agreement under s.186 that an application be accompanied by the material described in s.185(2). Further, that it is a matter of statutory construction as to whether the Act evinces an intention that non-compliance with the signature and declaration requirements of s.185(2) operates to invalidate an application for approval of an agreement.[1]

[10] In relation to the approach to interpreting ss.185-186 of the Act, the CFMMEU submit:

"The primary object of statutory construction is to construe the relevant statutory provisions so that they are consistent with the language and purposes of the [sic] all the provisions of the statute.

The meaning of a provision is determined by reference to the language of the statute, viewed as a whole and having regard to the context, the general purpose and policy of the provision. Allied to these general principles is the requirement, imposed by s.15AA of the Acts Interpretation Act 1901 (Cth), that in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation. The purposes and objects of an Act must be considered not only where the provisions on their face throw up more than one possible construction, but in determining whether more than one construction is open."[2]

[11] The CFMMEU say that it is not a condition precedent to the exercise of the power under s.186 to approve an enterprise agreement that the application be accompanied by a signed copy of the agreement and/or relevant declarations, and the matter should be programmed for hearing in relation to compliance by the employer with the pre-approval steps.[3]

[12] The CFMMEU also submit that s.185(1) imposes an obligation on a bargaining representative to apply to the Commission for approval of an agreement once it is made pursuant to s.182(1), and that the employer had a statutory obligation to apply for approval which it ignored. The CFMMEU refer to the findings of the majority of the Full Court of the Federal Court in Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd[4] (Kaizen) in support of this submission.[5] The CFMMEU submit it is inherently unlikely that the legislature would have intended that an employer could negotiate an agreement with its employees and then determine, after the agreement is made, to frustrate the process by not signing it.[6] On this basis, the CFMMEU submit the mandatory nature of s.185(1) points towards it not being a condition precedent to exercise the approval power under s.186 that an application be accompanied by a signed agreement and/or accompanied by the declarations set out in the Fair Work Regulations 2009 (the Regulations).[7]

[13] In assessing whether it is a condition precedent the CFMMEU refer to the Explanatory Memorandum to the Fair Work Bill 2008 as demonstrating the purpose of s.185(2) at Item 762, which is as follows:

"The requirement for a bargaining representative to provide FWA with a signed copy of the agreement is intended to ensure that the agreement that FWA considers for approval is the one that the parties have made."

[14] The CFMMEU submit that this "purpose" can be fulfilled in a variety of ways. Including, by employees or other bargaining representatives providing evidence that the agreement was the agreement made by the parties or by the Commission exercising its powers under s.590 to inform itself about the issue and further, that the information in the Form F17 can be provided from other sources.[8]

[15] Further, in relation to the construction of s.186(1) of the Act and when the FWC must approve an agreement, the CFMMEU submit as follows:

"The preposition 'under' is used in s.186(1) in reference to s 185. 'Under' is a word that is locational and directs attention to an application being made under s.185(1). The legislature has not used the expression 'in accordance with' or 'in compliance with' or 'in conformity with', so as to evidence an intention that an application must strictly conform with the provisions of s.185.

Further, s.186(1) refers only to an 'application'. There is no reference to materials accompanying an application in s.186(1). All that s.186(1) concerns itself with is there being an application filed by a bargaining representative.

It follows that it is not a condition precedent to the exercise of the jurisdiction to approve an agreement under s.186(1) that an application for approval of an agreement is not accompanied by the materials described in s.185(2)."[9]

[16] The CFMMEU note that this conclusion is contrary to what was determined by the Commission in Construction, Forestry, Mining and Energy Union [2016] FWC 980 (Brownfield's Contracting Pty Ltd) and submits that the analysis adopted in that matter is incorrect.[10] In Brownfield's Contracting Pty Ltd the Commission determined that where the Applicant could not provide a signed copy of the Agreement in accordance with s.185(5) and associated Regulation 2.06A, that the application did not meet the requirements of s.185(2). The employer in that matter advised it had no intention of signing the Agreement. The Commission found the application was not a valid application, it did not meet the requirements for approval and it could not be approved.[11]

[17] The employer submits that if the CFMMEU's interpretation that the requirements prescribed by s.185(2) of the Act and 2.06A of the Regulations, including the signing of the agreement, are not a condition precedent then those sections would be entirely futile.[12] Further, that the CFMMEU in its own submissions concedes that the verb "must" is incontrovertibly a word imposing a mandatory obligation in relation to s.185(1). The employer points out that the word "must" also appears in s.185(2)(a) of the Act, namely that "the application must be accompanied by... a signed copy of the agreement" (emphasis added). The employer submits that on the one hand the CFMMEU seeks to invoke the word "must" to impose obligations on the employer, but on the other assert the same force does not apply to it.[13] The employer submits the "mandatory obligation imposed by the word "must" in s.185(2)(a) makes complete sense to avoid disputes of this very nature".[14]

[18] In relation to the proper construction the employer submits it is always proper to construe a word or phrase in light of the mischief which the provision is obviously designed to prevent, and in light of the reasonableness of the consequences which follow from giving it a particular construction. Further, that while s.15AA of the Acts Interpretation Act 1901 (Cth) does not depend on the existence of some obscurity or ambiguity, it requires two reasonable competing constructions and "nonsensical interpretations that fly in the face of the simple wording of a provision that may suit the given party are not a competing construction at all so as to resort to s.15AA departing from the clear ordinarily [sic] interpretation".[15]

[19] The employer points to a number of decisions in support of its submission that the interpretation that s.185(2) and Regulation 2.06A are expressed in mandatory terms and are a condition precedent is ubiquitous and unanimous.[16] Including, Brownfield's Contracting Pty Ltd and the Full Bench decision Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sustaining Works Pty Limited[17] (Sustaining Works). In relation to Brownfield's Contracting Pty Ltd the employer submits that this matter is "almost an identical parallel" but "even more troubled" as the CFMMEU could not correctly identify the company, which was incorrectly cited as "Griffiths Pty Ltd".[18]

[20] In reply submission the CFMMEU submit that the employer failed to address the critical issue articulated by the majority in Project Blue Sky v Australian Broadcasting Authority[19] (Project Blue Sky) that is, whether an act done in breach of a condition regulating the exercise of a statutory power renders the act invalid and of no effect. The CFMMEU say it was not the intention of the legislature that an employer that has 'made' an agreement with its employees pursuant to s.182(1) can frustrate the approval process by refusing to sign the agreement.[20] In further reply submissions, the employer submits Project Blue Sky does not assist the CFMMEU and says the decision confirms that the existence of an object of an Act "cannot control the dominating effect" of the requirements of any section of that Act. Further, that the High Court's decision goes on to confirm that if "compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition" and the mandatory nature of the condition precedent imposed by section 185(2) of the Act and Regulation 2.06A of the Regulations has been settled in the authorities referred to by the employer.[21]

[21] The CFMMEU submits that the issue of statutory construction is to be determined by reference to the text, context and purpose of ss.185-186 of the Act. Further, that in relation to first instance decisions the Commission is not bound by the principle of stare decisis and is not required to follow these decisions and for reasons articulated in the CFMMEU's submissions, the single instance decisions relied on by the employer are not correct and should not be followed. The CFMMEU also submit that those decisions, except for Brownfield's Contracting Pty Ltd, preceded Sustaining Works which was not referred to in Brownfield's Contracting Pty Ltd.[22]

[22] The CFMMEU submit that the Full Bench in Sustaining Works supports their contentions in respect to the proper construction of ss.185-186, in that an application filed without an agreement that is signed in accordance with s.185 of the Act and Regulation 2.06A is capable of approval. However, the CFMMEU also correctly point out that the Full Bench in Sustaining Works did not definitively determine the consequence of an application not being accompanied by signed copy of the agreement.[23] Further, that the Full Bench held that any deficiencies in respect to the content of applications or documents could be dealt with pursuant to s.586 of the Act, which demonstrates it is not a jurisdictional prerequisite that an application is accompanied by the documents in s.185(2). The CFMMEU submits any failure to provide such documents is capable of remedy under s.586 and refers to matters in which the Commission has remedied failures to comply with the signature requirements in support of its submission.[24]

[23] The employer submits the decision of the Full Bench in Sustaining Works does not support a submission that a signed copy of the proposed enterprise agreement is not a condition precedent. The employer says the Full Bench clearly stated otherwise and the permission granted in the appeal was to "allow Sustaining Works to file a copy of the Agreement which is signed in accordance with the requirements of reg.2.06A(2) within 14 days of the date of this decision". The employer submits "that does not apply here as the employer will never sign the CFMMEU's proposed agreement".[25]

[24] In relation to the other cases referred to by the CFMMEU in which the Commission has remedied failures to comply with signature requirements, the employer submits that these authorities all reiterate the mandatory requirements imposed by s.185(2) of the Act and Regulation 2.06A and provide Applicants with an opportunity to meet those requirements, noting that on each occasion a signed agreement was provided. Further, that the decision in Kaizen, referred to in their submissions of 4 October 2018, does not assist the CFMMEU as in that matter a signed agreement was provided and the issue related to whether the signatory had authority to sign the agreement.[26]

[25] The CFMMEU acknowledge the issue for consideration in this matter was not considered or determined in Kaizen. However, they submit that Kaizen demonstrates that it is not open to the employer to frustrate the statutory scheme by failing to make application under s.185(1) and then asserting that it will not execute the documents required by s.185(2).[27]

[26] Section 186(1) of the Fair Work Act 2009 (the Act) provides as follows:

"(1) If an application for the approval of an enterprise agreement is made under subsection 182 (4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190)."

[27] Section 185 deals with applications for approval of enterprise agreements. Relevantly it provides at s.185(2) that the application must be accompanied by a signed copy of the Agreement.

[28] Section 185(5) provides that the regulations may prescribe requirements relating to the signing of enterprise agreements. Regulation 2.06A(2) specifies what constitutes a signed Agreement for the purposes of s.185(2)(a). Regulation 2.06A is in the following terms:

"2.06A Bargaining representative must apply for FWC approval of an enterprise agreement - requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(ii) at least 1 representative of the employees covered by the agreement; and

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person's authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative's signature is not taken to indicate that the representative intends to be bound by the agreement."

[29] I have considered the submissions of the CFMMEU and the employer in relation to whether the Commission has power to approve an enterprise agreement pursuant to s.186(1) of the Act if the application is not accompanied by a copy of the enterprise agreement signed by the employer.

[30] The parties referred me to the decision of the Full Bench in Sustaining Works. In that matter a separate issue was identified which was not raised by the unions in their notice of appeal but the Full Bench considered it was necessary to deal with. The issue was that the copy of the Agreement which accompanied the application for approval was not signed in accordance with Regulation 2.06A(2), because the two persons who signed on behalf of the employees did not provide their full names and the addresses given were not considered proper addresses.

[31] Relevantly, in Sustaining Works the Full Bench said:

"[30] Section 185(2) is expressed in mandatory terms. Section 186(1) empowers approval of an enterprise agreement only if "an application for the approval of an enterprise agreement is made under section 185 ...". We consider that an application "under" s.185 must be one made in accordance with it. Further, s.585 requires that "An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind". Accordingly it is not open to the Commission to simply ignore a failure to comply with the signature requirements....

[31] However, because the signature issue was never raised before the Commissioner, there was never any opportunity for the exercise of the power in s.586 to deal with the problem. As a result the Commissioner's approval of the Agreement was arguably not in accordance with s.186(1) because he did not have before him an application made in accordance with s.185."[28]

[32] The Full Bench found it was appropriate to grant permission to appeal in the public interest in order to ensure that the mandatory provisions of the Act they identified were complied with. Pursuant to s.586(a), the Full Bench allowed the employer to file a copy of the Agreement which was "signed in accordance with the requirements of reg.2.06A(2) within 14 days" of the date of the decision.[29]

[33] The employer submits and I agree that the decision in Sustaining Works does not support the CFMMEU's submission that it is not a condition precedent that an application be accompanied by a signed copy of the agreement. Although the Full Bench in Sustaining Works did not definitively determine the consequence of an application not being accompanied by signed copy of the agreement, the Full Bench granted permission to appeal and pursuant to s.586(a), allowed the Applicant a period of time "to file a copy of the Agreement which is signed in accordance with the requirements of Regulation 2.06A(2). In doing so, the Full Bench made clear that this was to ensure the mandatory provisions of the Act were complied with.[30]

[34] The CFMMEU submit the mandatory nature of s.185(1), that a bargaining representative must apply to the Commission for approval of an agreement if it is made and further, the preposition "under" in s.186(1) instead of, for example "in accordance with" and the reference to an "application" and the fact there is no reference to materials accompanying an application, point towards it not being a condition precedent to exercise the approval power under s.186(1) that an application be accompanied by a signed agreement and/or accompanied by the declarations required. With respect, I do not agree with this submission. The employer submits that if the CFMMEU's interpretation that the requirements prescribed by s.185(2) of the Act and 2.06A of the Regulations, including the signing of the agreement, are a not condition precedent then those sections would be entirely futile. I agree with the Full Bench in Sustaining Works that an application under s.185 must be one made in accordance with it and it is not open to the Commission to ignore a failure to comply with the signature requirements. The word "must" in s.185(2) is language in mandatory form. It follows that an application under s.185 not accompanied by a signed copy of the Agreement pursuant to s.185(2)(a) of the Act, is not an application made in accordance with it and the application to approve the agreement is invalid.

[35] I agree with the CFMMEU that s.586 of the Act allows the Commission to amend applications and accept amended or revised signature pages after lodgement, which do not meet the requirements of Regulation 2.06A. However, in this matter the employer has indicated that it will never sign the Agreement. Therefore, it is apparent that providing an opportunity to the employer to provide a signed copy of the Agreement is futile.

[36] The CFMMEU also submit the information in the Form F17 can be provided from other sources and that the matter should be programmed for hearing in relation to compliance by the employer with the pre-approval steps. There is simply no utility in pursuing that course because the Agreement lodged was not signed by the employer covered by the Agreement. The employer has made it clear in this case that it will not provide a signed copy of the Agreement. There is therefore not a valid application under s.185 of the Act before the Commission and the employer has made it clear there will not be.

[37] The CFMMEU has not supplied a signed copy of the Agreement in accordance with s.185(5) and the associated Regulation 2.06A, therefore, the application does not meet the requirements of s.185(2) of the Act. The employer in this matter has advised the Agreement will never be signed by the employer. The Application is therefore not a valid application and cannot be approved. It follows that the Agreement does not meet the requirements for approval and for the reasons given I cannot approve the agreement.

[38] The application is therefore dismissed.

[1] CFMMEU submissions, filed 28 September 2018 at [4]

[4] Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23 at [133]

[5] CFMMEU submissions, filed 28 September 2018 at [13] - [14]

[11] Construction, Forestry, Mining and Energy Union [2016] FWC 980 at [9]

[12] Employer submissions, filed 4 October 2018 at [5.3]

[16] Employer submissions, filed 4 October 2018 at [7.1]; [2016] FWC 980, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sustaining Works Pty Limited [2015] FWCFB 4422, [2015] FCAFC 23, Bilfinger Berger Services (Australia) Pty Ltd [2010] FWA 6355, Finook Industries Pty Ltd [2011] FWA 2716, Regent Taxis Pty Limited T/A Gold Coast Cabs [2011] FWA 3683, The Australian Workers Union v RECivil Pty Ltd [2011] FWA 2525, Malteurop Australia Pty Ltd [2014] FWC 2476

[17] [2015] FWCFB 4422

[18] Employer submissions, filed 4 October 2018 at [5.4] - [5.5]

[19] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]

[20] CFMMEU reply submissions, filed 8 October 2018 at [12]

[21] Employer reply submissions, filed 9 October 2018 at [4.1 - 4.2]

[22] CFMMEU reply submissions, filed 8 October 2018 at [3] - [4]

[25] Employer reply submissions, filed 9 October 2018 at [3.1]

[27] CFMMEU reply submissions, filed 8 October 2018 at [10] - [11]

[28] [2015] FWCFB 4422 [30] - [31]

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