The attached document replaces the document previously issued with the above code on 21 June 2019.

References to C2009/69 at [11] and in the Orders at [70] are replaced with C2019/69.

[2019] FWCFB 3585

Fair Work Act 2009

s.604 - Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union

Appeal against decision [2018] FWCA 7386 of Commissioner McKinnon at Melbourne on 14 December 2018 in matter number AG2018/1899 -Appeal against decision [2018] FWC 6519 of Commissioner McKinnon at Melbourne on 23 October 2018 in matter number AG2018/1899 - right to be heard - whether denial of procedural fairness - whether application accompanied by signed copy of the agreement - permission to appeal in C2018/6172 and C2019/69 granted - appeals upheld - application by CFMMEU to be heard granted - approval of agreement quashed - application to approve agreement remitted to Commissioner to rehear.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (Appellant) has lodged three notices of appeal and seeks permission to appeal pursuant to s.604 of the Fair Work Act 2009 (Act) in relation to various decisions of Commissioner McKinnon made in connection with an application by Mechanical Maintenance Solutions Pty Ltd (Respondent) for the approval of the MMS Latrobe Valley Enterprise Agreement 2018 (Agreement).

[2] The first notice of appeal in C2018/6172 concerns a decision not to hear from the Appellant other than on a limited basis in relation to the application for the approval of the Agreement. The decision is in essence an interlocutory decision. The second notice of appeal in C2018/7302 concerns decisions made between 14 November 2018 and 5 December 2018 refusing to hear from the Appellant and/or employees of the Respondent who are members of the Appellant in relation to the application for approval of the Agreement and a decision refusing to provide the Appellant with un-redacted copies of the application for approval and a statutory declaration of the employer filed in support of the approval application. That decision is also in essence an interlocutory decision. The third notice of appeal in C2019/69 concerns the decision to approve the Agreement.

[3] By the time the appeals came to hearing the Appellant no longer pressed the appeal in C2018/7302[1] and we need not deal with that matter further. We are therefore left with the Appellant seeking permission to appeal and if permission is granted, to appeal two related decisions of the Commissioner:

• The first is a decision made on 23 October 2018 not to hear from or to exercise the Commission's discretion to further hear from the Appellant in opposition to the application to approve the Agreement, beyond the requirement for the Agreement to include a dispute resolution clause and in relation to the better off overall test (BOOT) (23 October Decision);[2] and

• The second is a decision made on 14 December 2018 to approve the Agreement with undertakings (14 December Decision).[3]

[4] The Respondent conducts a business which, inter alia, involves the provision of maintenance services and activities at power stations located in the Latrobe Valley. It does so in the capacity of a contractor engaged by various power stations from time to time.[4] At the time the Agreement was made five employees were said to be covered by the Agreement.[5] The notification time for the Agreement was 15 February 2018 and on that date a notice of employee representational rights (NERR) was given by hand to each employee who would be covered by the proposed Agreement.[6] At least some of the employees who were to be covered by the Agreement were at that time covered by the Mechanical Maintenance Solutions Pty Ltd (MMS) Latrobe Valley Power Stations (AMWU and CFMEU) Greenfields Enterprise Bargaining Agreement 2012-2016 (MMS Greenfields Agreement), which applied to their employment with the Respondent. The Appellant was also covered by that agreement.

[5] A vote on whether to approve the Agreement was conducted on 4 May 2018 in which all five employees said to be covered by the Agreement participated and cast a valid vote. [7] Four voted to approve the Agreement.[8] The Respondent engaged a consultant, Mr Ryan Murphy to meet with employees and explain the terms of the Agreement and the effect of those terms to relevant employees.[9] Mr Murphy appears to have first been engaged in February 2018[10] but he was not a bargaining representative appointed by the Respondent pursuant to s.176 of the Act. According to Mr Murphy, shortly after the NERR was given to employees, four of the five employees nominated Mr Luke Brown as a bargaining representative for the Agreement.[11] Instruments of appointment are not included in any of the appeal materials nor is Mr Brown identified as a bargaining representative for the Agreement in the application for the approval of the Agreement.[12] Instead Mr Wayne Silvester, an employee of the Respondent said to be covered by the Agreement[13] is identified as an employee bargaining representative.[14] However it appears to be common ground that Mr Silvester was not appointed as a bargaining representative in accordance with s.176 of the Act.[15] It also appears that Mr Brown is the son of Mr Timothy Brown, the managing director of the Respondent.[16]

[6] According to Mr Murphy, over the course of bargaining for the proposed Agreement there were some changes to staff. Two employees left employment with the Respondent and Mr Brown was deployed to a project in another State, which as a result meant that he would no longer be covered by the proposed Agreement. A further three employees were hired.[17]

[7] There is some dispute about whether Mr Silvester is an employee covered by the Agreement. The Respondent maintained that Mr Silvester is employed to perform duties as a rigger and scaffolder and also performs duties as a general store person.[18] Mr Silvester had been a member of the Appellant but had resigned his membership in or about September 2014. A record produced by the Appellant suggests that Mr Silvester resigned because he had begun working for the Respondent in a different capacity as staff in a Project Co-ordinator role.[19] Mr Silvester completed a statutory declaration in support of the application for the approval of the Agreement in which he declared that he was not appointed in writing as an employee bargaining representative for the Agreement, but that he took over "as bargaining representative as [he was] a full time employee" and that he was "verbally appointed by three of the employees".[20] In that declaration Mr Silvester specifies his occupation as "Project & Stores Coordinator."[21] It is not altogether clear that such an occupational classification is contemplated by the classification structure of the Agreement. Mr Silvester signed the Agreement, stating his authority to sign as "Employee bargaining Repersentative"(sic).[22]

[8] We will return to these matters later in this decision.

[9] The Appellant and another registered organisation, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) (collectively "the Unions") sought to be heard in relation to the Application. The Commissioner conducted a hearing on 27 September 2018 to deal with the applications. As already noted, in the 23 October Decision the Commissioner concluded that neither Union had a right to be heard but nevertheless exercised her discretion under s.590 of the Act to allow the Unions to make submissions on whether the Agreement passed the BOOT and on the requirement that the Agreement include a dispute settlement term as described in s.186 (6) of the Act. The Commissioner's reasoning for her conclusions is set out in the following passages extracted from the 23 October Decision:

"[17] There is some attraction to the notion that Parliament intended Part 2-4 of the Act and its related provisions to 'cover the field' in relation to the agreement making and approval process. The provisions of Part 2-4 as a whole 'bespeaks the giving of detailed legislative attention' to matters of that kind. It is also true that there are differences in the main agreement-making and agreement variation provisions of the Act. Each must be construed according to its own terms.

[18] Division 4 of Part 2-4 of the Act establishes a role for bargaining representatives in relation to the making of enterprise agreements. It emphasises the role of employees in the agreement-making process and gives them a choice about who will represent them. Employee organisations are the bargaining representatives for their members unless another representative has been appointed in their stead. The capacity of employee organisations to be bargaining representative for employees is limited to the employees whose industrial interests they are entitled to represent in relation to the particular agreement. It is in their capacity as bargaining representatives that employee organisations have the right to be covered by enterprise agreements.

[19] Similar circumstances to those now before me arose in Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd & Ors. In that matter, a Full Bench of this Commission found that the CFMMEU did not have a right to be heard in relation to an enterprise agreement approval application because it was not a bargaining representative for the agreement. The CFMMEU was covered by existing enterprise agreements and asserted that its rights under those agreements would be affected. The Commission held that such effects were indirect or consequential on any decision to approve the new enterprise agreements.

[20] On current authority, I find that none of the unions have a right to be heard in this matter.

[21] That leads to the question of whether I should nevertheless exercise my discretion under section 590 to hear from one or more of the unions in relation to the application. That in turn depends on what is required in order to ensure that the agreement approval decision is made fairly, having regard to the legal framework.

[22] In this matter, the CFMMEU and the AMWU are each covered by the Greenfields Agreements. If the Agreement is approved, that will no longer be the case. For that reason, I will accept submissions from the CFMMEU and the AMWU on the requirement for the Agreement to include a dispute settlement term and on the better off overall test. The same considerations do not arise in relation to the AWU and CEPU and neither appeared at the hearing to press for the right to be heard. The material before me does not persuade me to hear further from either the AWU or the CEPU in this matter."[23] [Endnotes omitted]

[10] The Appellant did not make any submissions concerning the dispute settlement provision of the Agreement or the BOOT. Indeed during the hearing on 27 September 2018 the Appellant submitted that it had not identified any concerns in respect of the BOOT.[24] Subsequently the Commissioner published the 14 December Decision approving the Agreement with undertakings.

[11] We are satisfied that the Appellant has standing to bring both appeals. In respect of the appeal in C2018/6172 it plainly has standing. The 23 October Decision concerned its application to be heard. That decision directly affected the Appellant and it is a person aggrieved by that decision. As to the appeal in C2019/69 the Appellant maintains it is a person aggrieved by the 14 December Decision, the subject of this appeal. The question of standing was not seriously contested. We consider that the Appellant has an interest in the 14 December Decision beyond that of an ordinary member of the public and consequently is a person aggrieved. The Appellant's rules permit it to enrol as members relevant employees who will be covered by the Agreement and thus to represent their industrial interests. Furthermore the Appellant's broader interest, as a registered organisation and frequent bargaining representatives for agreements made in this and related industries, in the proper administration of the agreement making provisions of the Act is also relevant. These circumstances are sufficient to confer standing to appeal on the Appellant in respect of the appeal in C2019/69.[25] The Appellant therefore has standing to appeal against the 14 December Decision pursuant to s.604 of the Act.

[12] By its notice of appeal pertaining to the 23 October Decision the Appellant sets out 9 grounds of appeal. There is no need to set out these grounds seriatim. Grounds 1, 2, and 4 - 6 contend appealable error, including by misconstruing relevant authority, by taking into account an irrelevant consideration, by failing to take into account a relevant consideration and by concluding that the Appellant did not have a right to be heard. Ground 3 contends that Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd[26] and Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd & Ors[27] were incorrectly decided and ground 7 attacks the adequacy or sufficiency of the reasons contained in the 23 October Decision.

1. 14 December Decision

[13] The notice of appeal which pertains to the 14 December Decision sets forth 12 appeal grounds. Again there is no need to set these grounds out in full here. The first ground is concerned with standing to bring the appeal. The substantive grounds of appeal are encapsulated in grounds 2 through 11. Ground 12 is merely a catchall ground of appeal and absent any identified additional ground of appeal, need not be further considered. Ground 2 is concerned with procedural fairness and in essence relies for its efficacy upon the grounds contained in the notice of appeal concerning the 23 October Decision. Ground 3 contends error in the exercise of the Commissioner's discretion whether to hear the Appellant further, by failing to take into account whether the Commissioner would be better informed if the Appellant were heard. Grounds 4 and 8 are not pressed.[28]

[14] By grounds 5 - 7 the Appellant contends error on the basis that there was no application capable of supporting the approval of the Agreement and that the application was not accompanied by a signed copy of the Agreement as required by s.185 (2) of the Act and in accordance with the requirements of Reg 2.06A of the Fair Work Regulations 2009 (Regulations).

[15] Grounds 9 through 11 are concerned with genuine agreement and contend that the Commissioner erred in assessing whether the Respondent had taken all reasonable steps to explain the terms of the Agreement and the effect of those terms to relevant employees, and whether there were no other reasonable grounds for believing the Agreement was not genuinely agreed to by the relevant employees.

[16] We deal with the substance of these grounds of appeal further below and it is convenient that we begin with the 23 October Decision.

[17] The issue whether a registered organisation that is not a bargaining representative for an enterprise agreement should be heard in an application for the approval of that agreement was considered in Collinsville Coal. In dealing with a contention by the CFMEU that procedural fairness required it to be afforded a right to be heard because its right, interest or legitimate expectation was affected by the approval of the agreement[29] the Full Bench in Collinsville Coal said:

"[62] Doubtless, the CFMEU has an interest in all of these matters or even some expectation as to these matters but that will not be enough to attract the right to be heard. As McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam:

"Used in some strict sense, or as an antonym to "illegitimate", the term "legitimate" is apt to suggest entitlement in law to some final outcome. However, the term has been used in the authorities not in that sense, but with a lesser meaning of "reasonable". Here too care is needed. Not every expectation or hope which might be entertained by a "reasonable man" will necessarily attract the doctrine. This qualification was noted by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service.

The term "expectation" also has its uncertainties. It is used in various senses in the law. A beneficiary may be said, as an aspect of the trust institution, to be entitled to expect that the trustee will observe the terms of the trust and otherwise act in the interests of the beneficiary. The reasonable expectation of a purchaser of the benefit from the increase in value of land the subject of an uncompleted instalment contract may support the intervention of equity to relieve against forfeiture of the contract. These expectations are founded in legal, particularly equitable, precepts and principles rather than in individual aspirations shown by the evidence in any case. Expectations of reliance also inform the importance of a duty of care in utterance by way of information or advice. In the field of estoppel, notions of expectation are often linked to reliance and detriment. Here the emphasis is upon the state of mind of the individual.

In the field of public law, to speak of an expectation placed in a decision-maker invites the questions (i) who entertains the expectation; (ii) how does it come to arise; and (iii) to what outcome is it addressed? . . ."

"The role of the doctrine of legitimate expectation

In his dissenting judgment in Teoh, McHugh J questioned whether, given the development in Australian case law of the requirements of procedural fairness, the doctrine of legitimate expectations was left with any distinct role. His Honour said:

"I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker 'to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it'. If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?"

"So long as the notion of legitimate expectation is seen merely as indicating 'the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded' to accord procedural fairness to an applicant for the exercise of an administrative power, the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would become a stalking horse for excesses of judicial power."

These statements by McHugh J and Brennan J should be accepted as representing the law in Australia. The decision in Teoh does not require any contrary or other understanding of the law."

[64] We are not persuaded that having that interest or expectation articulated by the CFMEU by reference to the Smyth affidavit gave rise to a right to be heard in the application for the approval of the Agreement.

[65] In our view the right, interest or legitimate expectation that is said to be affected by application of the kind before the Senior Deputy President must be identified and understood against the framework of enterprise bargaining and agreement making established by the FW Act. It is not enough, without more, to point to the status of the CFMEU as an employee organisation with a history of representation at the workplace or in the industry. Moreover, this is not a case where some of the members of the CFMEU voted against the approval of the Agreement or did not vote at all. All of the employees covered by the Agreement voted, and all of those employees (including Employee 2) voted in favour of approving the Agreement.

[66] The statutory framework includes that enterprise agreements are made principally between an employer and employees; that bargaining representatives have a role in relation to enterprise bargaining either by default or by appointment; that default bargaining representatives can be displaced by appointment or by revocation; that enterprise agreements operate primarily at the single enterprise level and do not create rights of general application across an industry or have common rule application; that rights of an employee organisation to be involved in the bargaining process under the FW Act is not separate from its standing as a bargaining representative; and that its capacity to be involved in protected industrial action by seeking a protected action ballot authorisation cannot be separated from its standing as a bargaining representative.

[67] The legislative history of the agreement making and approval provisions in the FW Act is a relevant contextual consideration in this regard. 'Non-union' agreements, known as enterprise flexibility agreements (EFAs), first became a feature of the Commonwealth system with the enactment of Division 3 of Part VB of the Industrial Relations Act 1988 (Cth) (the IR Act). The IR Act provided 'eligible unions' with an opportunity to take part in negotiations for an EFA by effectively placing an obligation on an employer to notify eligible unions and to provide them with a reasonable opportunity to take part in negotiations. An eligible union in relation to an EFA was defined in s.170LB to mean an organisation of employees:

(a) that is a party to an award that binds the employer in respect of work performed in that enterprise; and

(b) of which one or more employees whom the employer employs to perform work in the enterprise are members.

[68] An eligible union was entitled to be heard on an application to the Commission to approve the implementation of an EFA. Further, s.170NB(1) of the IR Act provided that an organisation of employees was entitled to be heard on such an application if it was bound by an award that bound the employer party to the EFA in respect of work performed in the relevant enterprise. There is no such express right to be heard in the FW Act and the role of organisations of employees in the bargaining and agreement approval provisions under the FW Act is very different to that provided for in the IR Act.

[69] That an employee organisation has an ongoing relationship with its members who might become covered by an agreement and has a role under its rules in representing those members is not relevant in the context of a right to be heard in relation to the approval of an agreement. The FW Act does not confer a right on employee organisations (other than in the case of the greenfields agreement) to be covered by an agreement if it was not a bargaining representative. Likewise, the FW Act does not confer upon an employee organisation a role in enterprise bargaining under the FW Act outside of its status as a bargaining representative. The mere fact that an employee organisation has an ongoing relationship with its members and is entitled to represent their industrial interests is not a sufficient basis to conclude that the approval of an enterprise agreement will adversely affect a right, interest or legitimate expectation of that employee organisation.

[70] In similar vein, that an employee organisation has amongst its interests, objects or expectations, that it will obtain and maintain reasonable employment conditions for its members, is in the context of the bargaining framework established by the FW Act, an insufficient basis for there to arise a right, interest or legitimate expectation and thereby a conferral on the employee organisation of a right to be heard in relation to an application to approve an enterprise agreement.

[71] Account should also be taken of the fact that enterprise agreements may confer or deal with the rights and obligations of an employee organisation vis-a-vis the employees and that a new agreement might displace or alter those rights and obligations, but that is not the case here.

[72] Whether an employee organisation which is not a bargaining representative has a right to be heard in relation to an application for the approval of an agreement will depend on the circumstances in each case. In this case, when the rights, interests or expectations asserted by the CFMEU are understood in the legislative context, it is clear that the CFMEU has not established any right, interest or legitimate expectation that would be adversely affected by the decision to approve the Agreement which would give it a right to be heard."[30] [Endnotes omitted]

[18] Collinsville Coal should not be taken as endorsing the notion that the existence of some legitimate expectation conditions or will separately found a right to be heard in an administrative proceeding and relevantly in an application for the approval of an enterprise agreement. The Full Bench in Collinsville Coal was responding to the case put by the CFMEU that it had a legitimate expectation. As is evident from the passages from the judgment of McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam[31] reproduced in the above extract and on which the Full Bench in Collinsville Coal relied, the requirement to afford procedural fairness is not conditioned on the notion of a legitimate expectation, and the question whether a person in a given case has a right to be heard is determined by reference to that which fairness requires in all the circumstances of the case.

[19] This point was also made by Gleeson CJ in Ex parte Lam in which his Honour said that the "creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed."[32]

[20] More recently in Minister for Immigration and Border Protection v WZARH,[33] Kiefel, Bell and Keane JJ discussed the notion of legitimate expectation and its role in determining an entitlement to procedural fairness in administrative law and said:

"28. The use of the concept of "legitimate expectation" as the criterion of an entitlement to procedural fairness in administrative law has been described in this Court as "apt to mislead, "unsatisfactory" and "superfluous and confusing". In Lam, Hayne J observed that the concept "poses more questions than it answers", such as "[w]hat is meant by 'legitimate'?" and "[i]s 'expectation' a reference to some subjective state of mind or to a legally required standard of behaviour?" and "whose state of mind is relevant?" and "[h]ow is it established?". Hayne J concluded that "reference to expectations, legitimate or not, is unhelpful".

29. More recently, in Plaintiff S10/2011 v Minister for Immigration and Citizenship, Gummow, Hayne, Crennan and Bell JJ referred to the discussion of the concept by four members of the Court in Lam, and said that:

"the phrase 'legitimate expectation' when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded."

30. The position has been made sufficiently clear that it is not necessary for this Court to engage again in discussion of the concept of "legitimate expectation" in administrative law or to trace its progress from its controversial origins, to its tentative acceptance in Australian law, to its rejection as a touchstone of the requirement that a decision-maker accord procedural fairness to a person affected by an administrative decision. The "legitimate expectation" of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made."[34] [Footnotes omitted]

[21] Also in WZARH and to the same effect Gageler and Gordon JJ said:

"59. There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.

60. Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

61. That is to highlight one of the confusions that can be introduced when the concept of "legitimate expectation" is used as a basis for determining the content of procedural fairness. By focussing on the opportunity expected, or legitimately to have been expected, the concept can distract from the true inquiry into the opportunity that a reasonable administrator ought fairly to have given. The former is relevant only in so far as it bears on the latter. As Gleeson CJ put it in Lam:

"[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.""[35] [Footnotes omitted]

[22] As should be clear from the discussion above, the notion of legitimate expectation or the legitimate expectation of a person affected by an administrative decision is not a touchstone of the requirement that a decision-maker accord procedural fairness to a person affected by an administrative decision. Administrative decision-makers, including Members of the Commission must accord procedural fairness to those affected by decisions they make. What is required is to ensure the decision is made fairly and is determined by reference to the circumstances of a given case having regard to the legal framework under which the decision is to be made. The legislative framework discussed in Collinsville Coal was then, and remains relevant to that assessment in the context of an enterprise agreement approval application. In that context the focus of the enquiry is not on what was promised or is expected, rather it is on what should be provided in the circumstances of the case to ensure the decision is made fairly.

[23] To this we would add one further observation. It is uncontroversial that the common law obligation to accord procedural fairness to a person affected by an administrative decision arises when the person is directly affected by such a decision. This is not limited to an affected legal right or to a proprietary, financial or reputational interest that a person may have. It is not the kind of individual interests that a person has that is relevant, rather it is the manner in which it is apt to be affected.[36]

[24] The essential basis on which the Commissioner concluded that the Appellant did not have a right to be heard in relation to the application for the approval of the Agreement is set out at [17] - [19] of the 23 October Decision which have been earlier reproduced. In essence the Commissioner determined, having regard to the statutory context, that the Appellant did not have a right to be heard because it was not a bargaining representative for the Agreement. Further the Commissioner applied Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd & Ors[37] in concluding that the Appellant was not otherwise affected by any decision to approve the Agreement which would give rise an obligation to afford the Appellant procedural fairness by hearing it in relation to the application.

[25] Before dealing with the decision in MGI Piling it is first necessary to return Collinsville Coal. It is to be remembered that in Collinsville Coal the Full Bench made the unremarkable observation that whether an employee organisation, which is not a bargaining representative, has a right to be heard, in the sense that there is a requirement that procedural fairness be accorded to it, in relation to an application for the approval of an agreement will depend on the circumstances in each case.[38] In doing so the Full Bench also posited that account should be taken of the fact that enterprise agreements may confer or deal with the rights and obligations of an employee organisation vis-a-vis the employees and that a new agreement might displace or alter those rights and obligations.[39]

[26] In MGI Piling the Full Bench gave consideration to whether the CFMEU should have been heard in an application for the approval of an agreement in a situation of the kind posited in by Collinsville Coal. After referring to the passages from Collinsville Coal summarised in the preceding paragraph, the Full Bench in MGI Piling said:

"The CFMEU submits that the following "corporate rights and entitlements" it has under each of the existing enterprise agreements would be lost if the new enterprise agreements were approved:

(a) the CFMEU would no longer be a party to the enterprise agreements that apply to employees of the Piling Contractors;

(b) the CFMEU would not be a member of the Company consultative committee;

(c) the CFMEU would no longer be notified if any work was to be sublet to another contractor;

(d) the CFMEU would no longer be consulted if supplementary labour was required or utilised;

(e) the CFMEU would not necessarily be involved in any dispute; and

(f) the CFMEU would not necessarily be involved in any future negotiations.

[21] As to the contention that the CFMEU would no longer be a party to the enterprise agreements if the new enterprise agreements were approved, it is important to recognise that the statutory framework is such that enterprise agreements are made principally between an employer and employees. Although the existing enterprise agreements that apply to the Piling Contractors make reference to the CFMEU in the clause entitled "Parties and Persons Bound and Covered", this clause must be construed in the context of the Act under which it was approved. Under the Act, the CFMEU has no right to be a "party" to such an enterprise agreement. The CFMEU had the right to be covered by the current enterprise agreements because it was a bargaining representative in relation to those agreements. Indeed, the decisions approving the current enterprise agreements for the Piling Contractors note that the CFMEU "has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation". Accordingly, the existing enterprise agreements cover, and apply to, the CFMEU, but it is not a "party" to them.

[22] A consequence of the CFMEU being covered by the existing enterprise agreements is that the CFMEU has standing under s.539 (item 4) of the Act to sue any of the Piling Contractors in respect of any contravention of a term of the existing enterprise agreements. The CFMEU would have had the same standing to sue under the new enterprise agreements (assuming they are approved), if it was a bargaining representative for any of its members (or other employees) covered by the new enterprise agreements and it had given the Commission a written notice under s.183 that it wanted to be covered by the new enterprise agreements. It follows that the principal reason the CFMEU will not have standing under s.539 (item 4) of the Act to sue any of the Piling Contractors in respect of any contravention of a term of the new enterprise agreements (assuming they are approved) is because the CFMEU is not a bargaining representative in relation to any of the new enterprise agreements.

[23] Further, in light of our conclusions below that the Piling Contractors' existing enterprise agreements do not confer on the CFMEU any of the rights for which it contends, the CFMEU would only be able to use its standing under s.539 (item 4) of the Act to sue any of the Piling Contractors in respect of any contravention of a term of the existing enterprise agreements on behalf of its members for breaches by the Piling Contractors of their obligations to the employees under the existing enterprise agreements. As the Commissioner pointed out, such "issues pertain to the protection of the employees - not the Union". The approval of the new enterprise agreements will not have any impact on the CFMEU's right to represent any of its members in proceedings against any of the Piling Contractors in respect of any contravention of a term of the new enterprise agreements.

[24] As to the contention that the CFMEU would not be a member of the Company consultative committee, clause 9 of the Avopiling EA states that: "The Company may establish and maintain, where appropriate, a Consultative Committee as a forum for effective communication between the parties. The Consultative Committee will be made up of an equal number of management representatives and Employee representatives elected by the Employees. The parties agree that there will be a maximum of three representatives from management and three from the site workforce". It is clear from this clause of the Avopiling EA that the CFMEU does not have a right under the existing enterprise agreements to "be a member of the Company consultative committee".

[25] As to the contention that the CFMEU would no longer be notified if any work was to be sublet to another contractor, clause 24.1 of the Avopiling EA states that: "If the Company wishes to sub-let a contract or part of a contract to a bona fide contractor to perform work that might be performed by Employees under this Agreement, the Company must first consult in good faith with the potentially affected Employees and their Representative(s)". Whether any particular employee engages the CFMEU to act as their representative is a matter for the employee. It is clear that the existing enterprise agreements do not confer any right on the CFMEU to "be notified if any work was to be sublet to another contractor".

[26] As to the contention that the CFMEU would no longer be consulted if supplementary labour was required or utilised, clause 24.2 of the Avopiling EA states that: "Where there is a need for supplementary labour to meet temporary/peak work requirements, such labour may be accessed from the bona fide labour hire companies following consultation with the Company Consultative Committee and/or workplace delegate". The CFMEU does not have a right under the existing enterprise agreements to be a member of the Consultative Committee, nor is the CFMEU a "workplace delegate". It follows that the existing enterprise agreements do not confer any right on the CFMEU to "be consulted if supplementary labour was required or utilised".

[27] As to the contention that the CFMEU would not necessarily be involved in any dispute, clause 26 of the Avopiling EA sets out the dispute resolution procedure under the enterprise agreement. It provides (at subclause 26(b)) that: "an Employee or Employees may appoint another person or Union representative to support or represent them at any stage of discussions and/or the grievance procedure to resolve the concern or dispute". Subclause 26(f) of the Avopiling EA is also relevant. It states that:

"Parties to a dispute may appoint a person or organisation of their choosing to represent them in the dispute settlement process. In the absence of any express appointment to the contrary, Union members shall be represented by their Union at all stages of the dispute settlement process. The Company agrees to engage with the Union in good faith for the purposes of dispute resolution by allowing the relevant Union official to enter the workplace to assist with representing Employees to deal with a dispute under the terms of this dispute resolution procedure provided however this clause shall not be construed as providing any rights which are inconsistent with s.194(f) or (g) of the Fair Work Act."

[28] It is apparent from these provisions of the Avopiling EA that employees can appoint any person or organisation of their choosing to represent them during a dispute. Accordingly, the existing enterprise agreements do not confer any right on the CFMEU to "necessarily be involved in any dispute". Further, the new enterprise agreements, if they are approved, must contain a dispute settlement procedure that allows for the representation of employees covered by the enterprise agreement for the purposes of that procedure (s.186(6)(b) of the Act). It follows that the CFMEU will not lose its capacity to represent its members, if any of its members wish to be represented by the CFMEU, in a dispute under the dispute settlement procedure in the new enterprise agreements.

[29] As to the contention that the CFMEU would not necessarily be involved in any future negotiations, clause 5 of the Avopiling EA states that: "No later than three (3) months before the expiration of this Agreement the parties may commence discussions concerning a future Agreement. The Employees may be represented by the Union in accordance with s.176 of the Fair Work Act 2009 as one of the Bargaining Representative(s)." The use of the word "may" in clause 5 suggests that it is not mandatory for the parties to "commence discussions concerning a future Agreement". However, even if the word "may" were construed to mean "must", it is plain from clause 5 that the CFMEU's role in negotiations for a future enterprise agreement would (a) only arise if it was a bargaining representative for any employee covered by the new enterprise agreement and (b) be limited to its capacity as a bargaining representative for one or more employees. Accordingly, the existing enterprise agreements do not confer any right on the CFMEU to "necessarily be involved in any future negotiations".

[30] In addition, the Act places obligations on and grants privileges to any person or entity that is a bargaining representative for a proposed enterprise agreement, including standing to apply for a bargaining order if the good faith bargaining requirements are not being met by other bargaining representatives. It follows that the CFMEU will not lose its capacity to be involved in negotiations for an enterprise agreement, if it is a bargaining representative for one or more employees to be covered by the agreement.

[31] Having regard to the framework of enterprise bargaining and agreement making established by the Act and the matters set out in the previous ten paragraphs, we are of the view that the CFMEU is not a person whose rights, interests or legitimate expectations will be directly affected by any decision to approve the new enterprise agreements. Taking the CFMEU's case at its highest, including the fact that the CFMEU will not have standing, in its own capacity, to sue for a breach of the new enterprise agreements (assuming they are approved), the most that could be fairly said is that the CFMEU may be affected, indirectly or consequentially, by a decision to approve the new enterprise agreements. Such an impact is not sufficient to give the CFMEU a right to be heard in the application for the new enterprise agreements."[40] [Endnotes omitted]

[27] It seems common ground that the correctness of MGI Piling was not canvassed by the Appellant during the proceedings leading to the 23 October Decision.[41] MGI Piling does not appear to have been the subject of submissions at all, although some of the factual matters asserted by the Appellant as founding its application to be heard are also factual matters considered in MGI Piling. It is apparent also that no submission was put to the Commissioner by the Appellant to the effect that the judgment in WZARH affected the correctness of MGI Piling or for that matter, of Collinsville Coal.[42] Both the Appellant and the Respondent relied on the later decision.[43] The Appellant also sought in the proceeding below to distinguish Collinsville Coal "because we can establish rights, interests and legitimate expectations in this matter."[44] Indeed as to the import of WZARH, the Appellant submitted before the Commissioner that:

"The CFMMEU reiterates its earlier submissions filed in this matter that deal with the effect of the termination of the current agreement on the CFMMEU. It is submitted that the rejection by the HCA of the doctrine of legitimate expectations does not have the effect that the rights, interests and indeed legitimate expectations of the CFMMEU become irrelevant considerations. Instead these factors may and properly should still be taken into account to the extent that they are germane to the question of what is required to ensure procedural fairness under all of the relevant circumstances. It is submitted that where the unions can establish relevant rights, interests or legitimate expectations that may be affected by the decision, procedural fairness would generally militate in favour of the unions being heard by the FWC in the absence of any strong countervailing considerations. To say as much remains entirely consistent with both the decisions of the FWCFB in Collinsville and that of the HCA in WZARH."[45]

[28] As the Commissioner noted in the 23 October Decision it was the Respondent which asserted that the Unions did not have a right to be heard by reference to WZARH, and maintained that to the extent that interests of the Unions are affected by any agreement approval decision, that effect is indirect.[46] Moreover the submissions of the Respondent filed in the proceeding below correctly note that the decision in Collinsville Coal does not stand for the proposition that the existence of a legitimate expectation would give rise to a right to be heard.[47] After referring to the judgment in WZARH the same submissions observed, again correctly, that the only question is whether in order for the decision concerning the proposed enterprise agreement to be made fairly, the Commission is required to provide the CFMMEU with an opportunity to be heard and that that will depend, inter alia, on the statutory context.[48]

[29] Given the way in which the matter was conducted before the Commissioner, it is hardly surprising, and the Commissioner cannot be criticised for the fact, that she dealt with and applied the authorities that the Appellant now seeks to impugn in the way that she did. In truth the Appellant seeks to put a different emphasis on its case to that which it advanced below. In Metwally v University of Wollongong[49] the High Court observed:

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principal to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."[50]

[30] That said, we do not consider the Appellant seeks to raise a new argument. Rather it relies on the same facts it relied on below but places a different emphasis on the import of WZARH on those facts. In that sense the position is akin to the exception noted in Metwally and discussed in Coulton v Holcombe,[51] where upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that a question of law should be argued and decided.[52]

[31] We turn then to consider those matters. It is uncontroversial that the Appellant was, at the time the Commissioner considered its application to be heard, covered by the MMS Greenfields Agreement and that it would cease to operate if the Agreement commenced operation. Before the Commissioner the Appellant focused on the relevance of the ongoing coverage and application of the MMS Greenfields Agreement and the rights sourced in that agreement pertaining directly to the Appellant.[53] The Commissioner dealt with these issues at [19] of the Decision which we have earlier reproduced.

[32] The Appellant contends that the Commissioner erred in her blanket application of MGI Piling to the current circumstances as she appears to have simply assumed that the current circumstances are on all fours with those in MGI Piling and they are not. The Respondent contends that Members of the Commission should follow Full Bench decisions unless there are sound reasons for departing from those decisions and there were no such reasons to do so in this instance. The Respondent also contends that the fact the Appellant now seeks to articulate a different basis for its application does not affect the correctness of the Authorities or their application by the Commissioner.

[33] In the proceeding before the Commissioner the Appellant pointed to several provisions of the MMS Greenfields Agreement that are said to be the source of rights for it, and which would no longer exist if the Agreement were approved, including the following provisions:

a. Clause 19.3 - Union Picnic Day;[54]

b. Clause 31.1 - Grievance and dispute resolution procedure;[55]

c. Clause 43.3 - Employee representative rights;[56]

d. Clause 44 - Engagement of contractors;[57] and

e. Clauses 2.2, 3.1 and 3.2 of the Metal Engineering and Associated Industries Award 1998, (as incorporated).[58]

[34] It also contended that its right to engage with the dispute settlement procedure as a party and its right to commence enforcement proceedings for contraventions of, inter alia, s. 50 of the Act would be removed or adversely affected.[59] In MGI Piling the Full Bench dealt with the later point as follows:

". . . Taking the CFMEU's case at its highest, including the fact that the CFMEU will not have standing, in its own capacity, to sue for a breach of the new enterprise agreements (assuming they are approved), the most that could be fairly said is that the CFMEU may be affected, indirectly or consequentially, by a decision to approve the new enterprise agreements. Such an impact is not sufficient to give the CFMEU a right to be heard in the application for the new enterprise agreements."

[35] Respectfully, we take a different view. We consider that a decision to approve an enterprise agreement which, when it commences operation, has the effect of removing the right of a registered organisation to enforce the terms of an antecedent enterprise agreement (although not for past contraventions) which covers it, directly affects that organisation. It has the effect of removing a workplace right. The view we hold is consistent with the observations of a Full Court of the Federal Court in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union[60], which was decided after MGI Piling set out below:

"58. An enterprise agreement must be construed in its industrial and legislative context as an agreement made between parties engaged in an employment relationship in which employee organisations, such as the five unions, can, and often will, have a workplace right under ss 341(1) and or 183(1) of the Fair Work Act to play a part, including as a party to it. Those persons may not have been assisted by lawyers in the precise framing and expression of its terms.

59. Here, when the Commission approved the Yallourn agreement it noted, pursuant to s 201(2), in its decision that the agreement once it came into operation under s 54(1) following the Commission's approval, "covered" each of the five unions. That had the consequence that it provided the terms and conditions that governed the rights and obligations of each of the five unions in respect of both Energy Australia, as employer, and its employees who were, or were eligible to be, members of the respective union: cf. Aldi Foods Pty Ltd (as general partner of Aldi Stores) (a limited partnership) v Shop Distributive and Allied Employees Association [2017] HCA 53; (2017) 350 ALR 381 at 388-389 [26]- [34], 396 [78] per Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ.

60. An enterprise agreement is a statutory artefact made by persons specifically empowered by the Fair Work Act to do so: Marmara 222 FCR at 180 [90]. It has a legislative character, because it is a fair work instrument, as defined in s 12 of the Fair Work Act. The Act enables an enterprise agreement to be made between an employer and both its employees (by majority vote) and employee organisations, such as the five unions.

61. As noted above, an enterprise agreement is a "workplace instrument" made pursuant to the Fair Work Act for a particular statutory purpose, namely to regulate an employment relationship in which, often, as in the present case, employee organisations will be involved. An employee organisation has a right, under s 540(2), to seek a remedy under Div 2 of Pt 4-1 of the Act "in relation to a contravention ... of a civil remedy provision ... in relation to an employee only if" the employee is or will be affected by the contravention and the particular union is entitled to represent his or her industrial interests. Each of the five unions had a workplace right, within the meaning of s 341(1)(a), because it had a role or responsibility under the Yallourn agreement and under s 341(1)(b), because it could initiate or participate in a dispute settlement process (within the meaning of ss 341(2)(j) and 186(6)).

62. Each of the five unions, as an employee organisation, could apply to the Court for an order under s 540(2) in relation to a contravention of, among others, s 50 (that prohibits a person from contravening a term of an enterprise agreement) as Energy Australia noted in its written submissions on the appeal and in addition, s 323(1)(a) (that requires an employer to pay an employee in full the amounts due to him or her in relation to the performance of work) (see s 539(2) items 4 and 10). It follows that each of the five unions had a workplace right under ss 323(1)(a) and 540(2) to initiate proceedings relating to compliance with cl 5.3 of the Yallourn agreement under s 341(1)(b), and also had a role or responsibility to enforce compliance with it under s 341(1)(a).

63. Since each of the five unions had a right to initiate proceedings in the Court, s 186(6) required cl 28 to provide a procedure to resolve a dispute that would be litigated in such a matter, because that dispute would arise under the Yallourn agreement, even if no individual employee had initiated a complaint, provided that Energy Australia had contravened its obligations under cl 5.3 in respect of one or more casual employees (see s 540(2))."[61]

[36] Much like the enterprise agreement considered in Energy Australia Yallourn the MMS Greenfield Agreement conferred substantive rights on the Appellant, separately to those conferred on employees covered by the MMS Greenfields Agreement. It is to be remembered that enterprise agreements may be made about permitted matters which includes matters pertaining, inter alia, to the relationship between the employer or employers, and the employee organisation or employee organisations that will be covered by the Agreement.[62]

[37] It is sufficient for present purposes to point to two such provisions in the MMS Greenfields Agreement. The first is the dispute settlement found in clause 31.[63] That term allows the "party with the grievance" to initiate the dispute settlement procedure by notifying "the other party at the earliest opportunity of the problem".[64] Clause 3 of the MMS Greenfields Agreement identifies the "parties" bound by the agreement which relevantly includes the Appellant.[65] Though on one view of clause 31 the procedure is designed to resolve disputes between one or more aggrieved employees and their employer, a construction of the provision which has the result that the Appellant is unable to initiate a dispute under the procedure is untenable in light of what is said by the Full Court in Energy Australia Yallourn:

"65. As s 172(1) of the Act provides, an enterprise agreement can be "about" matters pertaining to the relationship "between the employer ... and the employee organisation or employee organisations, that will be covered by the agreement". A dispute about, or involving, that relationship is a subject-matter for which s 186(6) requires a dispute resolution process to be included in an enterprise agreement. However, neither cl 28.1(a) nor par (3) of the model term, in Sch 6.1 to the Regulations, expressly addresses whether a dispute that any of the five unions may have with Energy Australia, arising under the Yallourn agreement as to its interpretation or Energy Australia's compliance with its terms, can be addressed only by discussions between the employer and one or more employees, without the involvement of the union(s) concerned.

66. Clearly enough, the literal phrasing of each of par (3) of the model term and steps 1 and 2 in cl 28.1(a) is apposite to cover a dispute that involves only the employer and one or more employees. However, both the model term and cl 28 are intended to provide, as s 186(6)(a)(i) requires, "a procedure that requires or allows [the Commission] ... to settle disputes ... about any matters arising under the agreement" (emphasis added). Therefore, a literal construction of cl 28 that precluded any of the five unions that are parties to the Yallourn agreement from initiating a dispute about a matter arising under it for which it has a workplace right, would defeat the purpose which the first three paragraphs of cl 28 (preceding cl 28.1) and ss 186(6) and 341(1) required the dispute resolution process in the clause to serve.

67. Energy Australia's argument that the Yallourn agreement did not provide any basis for any of the five unions to raise a dispute under cl 28 must be rejected. That is because, if the five unions themselves could never raise or pursue a dispute about their workplace rights, as employee organisations, covered by the Yallourn agreement within the meaning of ss 53(2), 172(1)(b) and 186(6)(a)(i), then cl 28 would not provide a procedure to settle a class of category 1 matters that could arise under the enterprise agreement. Accordingly, cl 28 would not comply with s 186(6).

68. Clause 28 itself defines category 1 matters as ones "that are in dispute, that go to the application or interpretation of this Agreement" and it states that it "facilitates access to [the Commission] for conciliation and, if necessary, arbitration" for those matters. The clause should be construed to ensure that it achieves that stated objective, and the requirements of s 186(6), in respect of all category 1 matters.

69. The particular provisions of cl 28.1(a) should not be construed so as to read down the general provisions of the introductory part of cl 28 or the facultative operation of cl 28.1(b). The latter permits "the parties" to agree to refer a dispute to the Commission "at any stage" for "speedy resolution". Clause 28.1(b) eschews the meretricious pedantry of Energy Australia's argument, and permits achieving the industrial, commercial and statutory objective of a comprehensive process to resolve all disputes of category 1 matters. It follows that any of the parties (Energy Australia, any of its employees and any of the five unions) between whom a dispute exists in respect of such a matter, can agree that the Commission can resolve it in accordance with the procedure in cl 28.

70. Energy Australia's submission, that it and the five unions would not be bound by any decision of the Commission in an arbitration under cl 28, and that each of it and they were free to commence proceedings in the original jurisdiction of this Court to seek declarations inconsistent with the arbitration decision, is self-evidently untenable and must be rejected. It would be recipe for industrial chaos if none of the five unions was bound by a resolution arrived at in the dispute resolution process even though cl 28 appeared, in its terms, to seek to achieve such a resolution.

71. The consequence of Energy Australia's argument would be that, although the Commission had resolved a dispute between it and its employees in a binding decision given under s 739(4), somehow both it and any of the five unions could evade the result of that statutorily mandated dispute resolution process. Such an absurd outcome would represent the antithesis of a dispute resolution process of the kind required by s 186(6) of the Fair Work Act. Indeed, if Energy Australia's argument were correct, then the Yallourn agreement could not comply with s 186(6) because it would not:

provide[] a procedure that requires or allows the [Commission], or another person who is independent of the employers, employees or employee organisations covered by [it] to settle disputes ... about any matters arising under the agreement. (emphasis added)

72. Moreover, the dispute resolution process in cl 28 would be subverted if it were confined solely to matters covered by cl 28.1(a). That is because the introduction to cl 28 provided that category 1 matters included:

matters that are in dispute, that go to the application or interpretation of this Agreement .... this clause facilitates access to the [Commission] for conciliation and, if necessary, arbitration.

73. The evident purpose of the Yallourn agreement was to ensure industrial peace at a large power plant in which there were many employees and five unions, each of whom had, or could have, different industrial and workplace concerns in respect of its own members (or employees eligible to be its members) and the other unions. The dispute resolution process in cl 28 would be pointless if it did not operate so as to bind all of those parties in a way that was certain. Unless all were capable of being bound, the requirement in s 186(6) of the Act, and the object of the parties themselves in agreeing to cl 28, could not be achieved. Instead there would be a chaotic decision-making process in which, on the one hand, the Commission could make binding arbitral awards between employees and Energy Australia, and on the other hand (as Energy Australia argued), both it and the five unions would be free to challenge those awards collaterally by proceedings in the Court.

74. Moreover, cl 28.1(b) allowed "the parties" to agree "at any stage" to refer a dispute to the Commission "in the interest of speedy resolution of the dispute". Although cl 28.1(a) provided a process to be followed that, in most cases, fitted the circumstances, the parties had the right to depart from it as provided in cl 28.1(b). Reading the Yallourn agreement as a whole, and giving cl 28 a construction in its industrial, contractual and statutory context, a reasonable person in the position of the parties would have understood that each of the five unions had a right to initiate a dispute about category 1 matters that the Commission could conciliate and arbitrate.

75. Energy Australia's argument that a third party such as a union cannot be a "party principal" to an enterprise agreement must be rejected. As explained above, the five unions have workplace rights under the Yallourn agreement and can enforce them. The proposed enterprise agreement, on which the employees vote, necessarily includes clauses dealing with the role and status in which any party to (or covered by) it can raise a dispute and have it determined in accordance with s 186(6), if the employees or a majority of them vote to approve entry into it and the Commission approves it.

76. Thus, the provisions of the Yallourn agreement, dealing with the five unions and, as cl 2 provided, their status as parties (or "Parties") to it, were voted on and approved by the majority of the employees. If the majority vote against approval of an enterprise agreement under s 182, then, of course, no union will be covered by, or a party to, an enterprise agreement. But that will be because there will not be any such agreement. Conversely, where the employees vote to approve an enterprise agreement that makes provision for a union to have a role as a party, then when the union (which is likely to have had a role as a bargaining representative under s 185(1) in formulating what was put to that vote) gives notice under s 201(2) to seek that it be covered, it will be acting, as both the employer and its approving employees contemplated, to become "covered" and so a party in its own right with all of the rights of a party.

77. Energy Australia argued that, somehow, a union is not a full party to an enterprise agreement that the Commission notes (under s 201(2)) is covered by that agreement. Energy Australia contended that such a union only has the right to bring proceedings in a court under s 539(2) to enforce it, but not to use the dispute resolution procedure (such as cl 28) that s 186(6) requires to be an essential feature of an enterprise agreement. That argument makes no sense. Once the employees (or a majority) have voted to approve an enterprise agreement that provides for a union to be a party (even on the assumption that it must give notice under s 201(2)), both those employees and their employer will have expressed agreement to the union becoming a party to the enterprise agreement, with all the rights of a party and subject to any limitation of those rights as the document provides."[66]

[38] There is no reason why the Appellant's position under the dispute settlement term of the MMS Greenfields Agreement, when that term is read in the context of the agreement as a whole and the statutory scheme under which the agreement was made, should be construed differently to the position of the five unions under the enterprise agreement the subject of proceedings in Energy Australia Yallourn. There is also no reason that the Appellant's position as a party to the MMS Greenfields Agreement is to be viewed differently to the position of the five unions in Energy Australia Yallourn, which came to be parties to the enterprise agreement by reason of the Unions having given notice before the agreement was approved that they wish to be covered by it. Indeed the MMS Greenfield Agreement was made with the Unions when they signed it in September 2013.[67] The Appellant raised the import of the Full Court's judgment in Energy Australia Yallourn on the application to be heard,[68] but the Commissioner did not expressly engage with the contention in the 23 October Decision.

[39] The second matter concerns clauses 44 of the MMS Greenfields Agreement which deals with the engagement of contractors and which permits, inter alia, the Appellant to refer a dispute about whether consultation as to engagement under the clause has occurred, to the disputes procedure.

[40] It seems plain to us that the Appellant had substantive rights whilst the MMS Greenfields Agreement continued to operate as to consultation over contractor engagement and as to initiation of disputes about consultation. Those rights would be directly affected upon the approval and subsequent commencement of operation of the Agreement.

[41] It follows in our view that in the circumstances, hearing the Appellant (whether orally or in writing) was required in order to ensure that the decision concerning the approval of the Agreement was made fairly. As the Commissioner refused to hear the Appellant save as to the limited areas identified in her 23 October Decision, the Appellant was denied procedural fairness and the Commissioner was in error.

[42] That conclusion alone does not result in the grant of permission to appeal the 23 October Decision. The Appellant has on appeal been given a full opportunity to agitate the matters it would have put had it been given an opportunity to be heard below. Therefore unless we are satisfied that the Commissioner was in error in the 14 December Decision that the approval requirements in s.186 and 187 of the Act had been met there would be little utility in granting permission to appeal the 23 October Decision, and certainly no utility in upholding the appeal.

[43] We have earlier set out in summary form the grounds of appeal the Appellant advances in respect of the 14 December Decision. It is convenient that we begin by considering grounds 5 - 7 by which the Appellant contends appealable error on the basis that there was no application capable of supporting the approval of the Agreement and that the application was not accompanied by a signed copy of the Agreement as required by s.185 (2) of the Act and in accordance with the requirements of Reg 2.06A of the Regulations.

[44] As a recent decision of the majority of a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Griffiths Cranes Pty Ltd[69] reaffirmed, the power to approve an agreement under s.186(1) of the Act is conditioned by the existence of "an application for the approval of an enterprise agreement ... under s. 185", and this means an application that is made in accordance with that section. An application that is not made in accordance with s.185 is not an application that engages the power to approve an agreement under s.186. The issue requiring determination in Griffiths Cranes was whether a failure to comply with the requirements in s.185(2) of the Act invalidated an application for approval or whether the failure to comply was amenable to waiver under s.586. The majority concluded that waiver under s.586 was available, and in doing so said:

"[40] We do not consider that a failure to comply with the requirement in s.185(2) that an application for the approval of an agreement be accompanied by a signed copy of the agreement results in the invalidity of the application in the sense that it or documents accompanying it cannot be corrected or amended or that certain irregularities cannot be waived by recourse to s.586. The preconditions to the exercise of the power to approve an agreement are that there has been an application to approve an agreement under s.185 and that the Commission is satisfied that the requirements of ss.186 and 187 are met.

[41] The scheme of the Act as we have described above mandates that once an agreement has been made under s.182(1), a bargaining representative for an agreement must make application to the Commission for its approval within the prescribed (or extended) time. The requirement in s.185 that an application for approval of an agreement be made within 14 days is in our view a clear signal that the legislature intended that once an agreement is "made" it must come to the Commission for consideration of approval. An application for an approval is to be made in accordance with the Act. But an application that is unaccompanied by one or more of the instruments required by s.185(2) (or in the case of a signed copy of the agreement that does not meet the requirements of reg 2.06A) is an application that is not made in accordance with the Act.

[42] As the Full Bench in Sustaining Works observed, the power to approve an agreement under s.186(1) is conditioned by the existence of "an application for the approval of an enterprise agreement ... under s. 185", and this means an application that is made in accordance with that section. An application that is not made in accordance with s.185 is not an application that engages the power to approve an agreement under s.186. As a consequence, an application for approval which is not accompanied by a signed copy of the agreement for which approval is sought cannot be approved. But such an application is not by that reason alone invalid in the sense earlier noted. The legislature contemplated that applications might be made to the Commission other than in accordance with the Act and made provision for that eventuality. Such an application is amenable to dismissal under s.587(1)(a), to correction or amendment under s.586(a), or if the failure to make an application in accordance with the Act is an 'irregularity in the form or manner' in which the application is made, to waiver under s.586(b). Plainly if the Commission does not exercise the power to correct or amend, or to waive an irregularity in the form or manner in which an application has been made, the Commission will have no power to approve an agreement the subject of an application which is not accompanied by a signed copy of the agreement. For the Commission to do so would be beyond power and amenable to correction on appeal. But that says nothing about the power to correct, amend or waive a particular irregularity, before the approval power is exercised.

[43] In the context of its use in s.586(b), the ordinary meaning of "manner" is "a way in which a thing is done or happens". "Irregularity" is "a defect, failure, or mistake" or a "departure from a prescribed rule or regulation." Taken together, their use in s.586(b) connotes a failure to comply with or a departure from a prescribed requirement in the way in which an application permissible under the Act is made; that is, an irregular way in which an application is made.

[44] An application for the approval of an enterprise agreement which is accompanied by an agreement that is not signed in accordance with the signature requirements in reg 2.06A seems to us to be an irregularity in the manner in which the application is made. An exercise of the discretion under s.586 to correct an application or accompanying document or to waive an irregularity may render the application as having been made in accordance with the Act. Thereafter, the power in s.186 is exercisable, because the application is one made under s.185 since the requirement in s.185(2) has been met because of correction, or has been waived.

[45] It would defeat the evident statutory purpose of requiring bargaining representatives to apply for the approval of an agreement that has been made under s.182(1) of the Act if an application were a nullity merely because the bargaining representative applying for its approval could not comply with s.185(2). Non-compliance may occur because for example the employer, or an employee bargaining representative, or a representative of employees refuses to sign the agreement. Non-compliance might also occur if an employer refuses to complete a statutory declaration in support of the approval of the agreement as required by the regulations. In the case of an applicant that is an employee bargaining representative, the employer's signing of the agreement is outside of its control. The entire scheme of bargaining and agreement making under the Act would be frustrated if the Commission could not exercise a waiver power as to the signing requirements in relation to an agreement which was validly made under s.182(1) but one which the employer subsequently refused to sign. This would permit the employer to deliberately frustrate the statutory scheme in much the same way as a refusal to make application to approve a validly made agreement notwithstanding the obligation to do so." [70]

[45] The Appellant's contentions in support of these grounds of appeal may be simply stated. The Appellant make two points. First, the copy of the Agreement that accompanied the application was signed by Mr Wayne Silvester who described his authority to sign the Agreement as "Employee bargaining repersentative"(sic).[71] It is uncontroversial, as we earlier noted, that Mr Silvester was not an employee bargaining representative. Consequently, the Appellant says that the application was not one made in accordance with s185(2) and absent correction or waiver under s.586, the Agreement was not capable of approval.

[46] The Respondent contends that it is plain enough from s.176 of the Act that there may be many cases where there are no formal "bargaining representatives" of employees to be covered by the Agreement. Accordingly, the reference to a "representative of employees" cannot mean a "bargaining representative", although an employee bargaining representative could of course fall within this description. Accordingly, the Respondent contends that to explain the authority of a "representative of employees" as "employee bargaining representative" is entirely apt. That does not suggest or convey that the person was necessarily a "bargaining representative" under the Act and even if it did, it would make no difference to any relevant legislative criteria either way because Mr Silvester was an employee covered by the Agreement.

[47] Secondly, the Appellant contends that there is a real question as to whether Mr Silvester was an employee covered by the Agreement. This issue was not expressly dealt with by the Commissioner. If Mr Silvester is not an employee covered by the Agreement then according to the Appellant, it is no answer to the deficient signature requirement to say that Mr Silvester was in a position to sign the Agreement as an employee in his own right.

[48] The Respondent contends there is and was no sufficient evidence (other than mere assertion) before the Commissioner that Mr Silvester was not covered by the Agreement. Indeed, the only clear evidence was that Mr Silvester was covered.[72] It contends that to the extent that any question was raised by the Appellant's contention/material, the Commissioner obviously resolved it against the Appellant, on the basis of the evidence from the Respondent.

[49] Section 186(1) contains the conditions precedent for the exercise of the power to approve an enterprise agreement. It provides:

"(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."

"Bargaining representative must apply for the FWC's approval of an enterprise agreement

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.

[51] Regulation 2.06A of the Fair Work Regulations 2009 provides:

"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:

• (a) it is signed by:
  • (i) the employer covered by the agreement; and
  • (ii) at least 1 representative of the employees covered by the agreement; and
• (b) it includes:

  • (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."

[52] We accept, as the Respondent contends, that "a representative of the employees covered by the agreement" for the purposes of the signing requirements does not need to be a bargaining representative. We also agree that an employee who is covered by the Agreement may sign it and state his or her authority to sign as a representative of the employees covered by the Agreement. In that context we consider that "representative of the employees covered by the agreement" in Reg 2.06A includes an employee who is covered by the agreement. Such an employee is representative of the employees covered by the agreement in the sense that the employee is typical of the class of employees covered by the agreement or as symbolising or portraying employees covered by the agreement. Although the issue does not arise here it seems the phrase "representative of the employees covered by the Agreement would also include a person appointed by some of the employees covered by the agreement to sign the agreement as their representative.

[53] However Mr Silvester does not state his authority as "a representative of the employees covered by the agreement". He states his authority as "Employee bargaining repersentative"(sic).[73] He was not a bargaining representative. The Respondent in its application for the approval of the Agreement identified Mr Silvester as an employee bargaining representative.[74]

[54] There is little doubt that a bargaining representative is authorised to sign an enterprise agreement. Such a person is a representative of employees covered by the agreement. Regulation 2.06A(3) contemplates, inter alia, a circumstance that an employee who is not covered by an agreement may be a representative of employees covered by the agreement, including an employee bargaining representative, and so authorised to sign the agreement

[55] It seems to us however, that the stated authority must actually authorise the signing. That is, an employee signing in a stated authorised capacity must fall within the stated capacity. A person who is not a bargaining representative cannot state their authority to sign as that of bargaining representative. That is the case here. As Mr Silvester was not an employee bargaining representative, the copy of the Agreement accompanying the application for approval was not a signed copy for the purposes of s.185(2)(a) of the Act because it did not meet the requirements of Reg 2.06A(2)(b)(ii) of the Regulations as it did not include an explanation of Mr Silvester's authority to sign the Agreement. This was a matter that is amenable to correction or waiver under s.586, but the discretion therein was not exercised, nor were we made aware of any application or request that the power be exercised, so that its exercise might be inferred

[56] It may be the case that an employee who is otherwise authorised to sign an enterprise agreement as a representative of employees, may mistakenly describe a different authorisation which does not apply to the employee. Such a mistake is curable.

[57] As to the question of whether Mr Silvester was an employee covered by the Agreement, and thus able in that capacity to sign the Agreement, we are not persuaded there was sufficient evidence before the Commissioner to enable her to reach a conclusion on that question. In any event it is not clear to us on the face of the 14 December Decision that she engaged with the issue. We discuss below the material before the Commissioner relevant to the issue whether Mr Silvester was an employee covered by the Agreement.

[58] Mr Murphy provided a witness statement dated 12 September 2018 in which he said:

"16. All five employees who voted for the Proposed EA come within the scope of that agreement. I have seen the submissions filed by the CFFMEU and I understand they have asserted Mr Silvester is not covered. This is incorrect.

17. Mr Silvester is employed in a role classified under the Proposed EA as an MMS3 role. He is required to perform duties as a rigger and scaffolder and also performs duties as a general store person. He falls within the MMS3 classification and is treated by the company as such."

[59] The Agreement does not contain classification descriptors. Appendix 1 to the Agreement is titled "employment classifications" and provides that an employee classified as a MMS3 will perform duties associated with the classification described as "mobile crane (

[60] Mr Murphy was not cross-examined on his statement concerning coverage of the Agreement of Mr Silvester because the CFMMEU was not given an opportunity to be heard beyond the question of the BOOT and the dispute settlement procedure. This was a matter sought to be agitated by both the Appellant[77] and by the AMWU which also sought to be heard in relation to the application.[78]

[61] Mr Silvester also made a statutory declaration in which he describes his occupation as "Project & Stores Coordinator". He also provides the following information in the declaration:

"1. At the start of negotiations another employee was appointed, in writing, as bargaining representative. That employee left MMS about halfway through the negotiations.

2. I took over as bargaining representative as I am a full-time employee.

3. Although that was not in writing I was verbally appointed by the three employees."

[62] It is by no means clear that the occupational description adopted by Mr Silvester contemplates performance of duties as a rigger and scaffolder and also duties as a general store person. The occupational description adopted by Mr Silvester appears consistent with the material in the statement of Mr Toby Thornton, an organiser with the Appellant, concerning the resignation by Mr Silvester of his membership with the Appellant in 2014 because he had begun working with the Respondent on "staff" in a project coordinator role.[79]

[63] The Agreement excludes from its coverage "supervisory or administrative employees".[80] Manufacturing and Associated Industries and Occupations Award 2010 (Modern Award), which is a relevant modern award for the purposes of assessing whether the Agreement passed the BOOT, contains a classification of "Supervisor/Trainer/Coordinator"[81]. Schedule B of the Modern Award also contains a classification descriptor or definition as follows:

(i) A Supervisor/Trainer/Coordinator - Level I is an employee who is responsible for the work of other employees and/or provision of structured on-the-job training. Such an employee has completed a qualification at AQF III level or above, of which at least one third of the competencies are related to supervision/training, or equivalent.

(ii) Notwithstanding the above definition an employee who is mainly engaged to perform work supervising or coordinating the work of other employees and who has sufficient additional training beyond that of those coordinated or supervised so as to enable the employee to perform work within the scope of this level must be classified at this level.

(i) A Supervisor/Trainer/Coordinator - Level II is an employee who is responsible for the supervision and/or training of Supervisor/Trainers/ Coordinators - Level I. Such an employee has completed an AQF IV or V qualification or equivalent of which at least 50% of the competencies are in supervision/training."

[64] It appears the Modern Award treats Supervisor/Trainer/Coordinator as one classification. It seems arguable that Mr Silvester's occupational description fell within the Supervisor/Trainer/Coordinator classification in the Modern Award and thus might be excluded from coverage of the Agreement because a person in such a classification was a "supervisory" employee.

[65] As the issue whether Mr Silvester was covered by the Agreement was a live issue in the sense that the Appellant would have pursued it if the Appellant was permitted to be heard, the material before the Commissioner described above was insufficient to ground a conclusion that Mr Silvester was an employee covered by the Agreement. There was therefore an insufficient basis to reach a conclusion that Mr Silvester was authorised to sign the Agreement as an employee covered by it. As already noted, the 14 December Decision does not disclose any consideration of the issue. This is perhaps unsurprising since the Appellant was not permitted to participate beyond the two matters to which earlier reference has been made.

[66] It follows for the reasons stated, that the application was not made in accordance with the Act and absent correction or waiver, the application was not one that engaged the power in s.186(1) of the Act. Absent such an application there was no power to approve the Agreement.

[67] Given our conclusions above we do not consider that it is necessary for us to deal with the remaining appeal grounds. This is because we have given consideration to whether, in relation to the matters above, we could uphold the appeal, quash the decision and consider for ourselves whether to exercise the discretion to waive or correct the signing requirements. We consider that since the Respondent maintains that Mr Silvester was authorised to sign the Agreement, because he was an employee covered by the Agreement, that there will be a need to allow further evidence in order for us to be satisfied as to the coverage issue because this will be relevant to the exercise of any discretion under s.586. It seems to us that the better course would be to remit the application back to the Commissioner.

[68] For the reasons stated we are satisfied that the public interest is enlivened in respect of each of the appeals because of the errors we have identified and because there is public interest in ensuring that the approval requirements about which the Commission must be satisfied are properly considered and administered. Given our conclusion in the second appeal we consider that it is appropriate to uphold the first appeal because there is plainly utility in doing so and appealable error is established. Accordingly we propose to quash the 23 October Decision and we consider it is appropriate that we rehear the Appellant's application to be heard in relation to the approval of the Agreement. For the reasons earlier stated we are satisfied that the Appellant is directly affected by any approval of the Agreement and in those circumstances we consider that it should be heard in relation to the application.

[69] We also consider that we should uphold the second appeal and quash the 14 December Decision. We propose to remit the application for the approval of the Agreement to the Commissioner for redetermination.

[70] We order as follows:

• (a) In the appeal in C2018/6172:

  1. permission to appeal is granted;

  2. the appeal is upheld;

  3. the decision in [2018] FWC 6519 is quashed;

  4. the Appellant shall be entitled to be heard, to lead evidence and to cross-examine any witness of the Respondent in proceedings related to the hearing of the application to approve the MMS Latrobe Valley Enterprise Agreement 2018.

• (b) In the appeal in C2019/69:

  1. permission to appeal is granted;

  2. the appeal is upheld;

  3. the decision to approve the MMS Latrobe Valley Enterprise Agreement 2018 is quashed;

  4. the application for the approval of the MMS Latrobe Valley Enterprise Agreement 2018 is remitted to Commissioner McKinnon for redetermination.

Appellant - 15 February 2019 (as amended 18 February 2019 and again on 22 March 2019)

[1] Outline of Submissions of the Appellant dated 15 February 2019 at [2]

[2] [2018] FWC 6519

[3] [2018] FWCA 7386

[4] Appeal Book at 169 - 170 [3] - [5]

[20] Appeal Book at 299-303, specifically at Q2

[23] 2018 FWC 6519 [17] - [22]

[24] Appeal book at 76, PN 239

[25] See CEPU v Main People Pty Ltd [2014] FWCFB 8429 at [5]- [7]; MUA v Toll Energy Logistics Pty Ltd [2015] FWCFB 7272; (2015) 254 IR 353 at [95]- [98]; CFMEU v MGI Piling (NSW) Pty Ltd [2016] FWCFB 2654; (2016) 260 IR 244 at [4]; TWU v ALDI Foods Pty Limited [2016] FWCFB 91; (2016) 255 IR 248 at [22]- [23]; CFMEU v CSRP Pty Ltd [2017] FWCFB 2101 (2017) 270 IR 1 at [8]- [13]; CFMEU v Concrete Constructions (WA) Pty Ltd [2017] FWCFB 3912 at [4]; and Construction, Forestry, Maritime, Mining and Energy Union v LS Precast Pty Ltd [2019] FWCFB 1431 at [115]

[26] [2014] FWCFB 7940, (2014) 246 IR 21

[27] [2016] FWCFB 2654, (2016) 260 IR 244

[28] Outline of Submissions of the Appellant, 15 February 2019 at [2]

[29] [2014] FWCFB 7940, (2014) 246 IR 21 at [61]

[31] [2003] HCA 6; (2003) 214 CLR 1 at 20 [61]- [63] and 27 - 28 [81] - [83]

[33] [2015] HCA 40, (2015) 256 CLR 326

[36] see for example Kioa and Ors v West and Anor [1985] HCA 81; (1985) 159 CLR 550 per Brennan J at 619

[37] [2016] FWCFB 2654, (2016 260 IR 244

[38] [2014] FWCFB 7940 at [72]

[40] [2016] FWCFB 2654, (2016) 260 IR 244 at [20]- [31]

[41] See Outline of Submissions of the CFMMEU on Appeal, 19 November 2018 at [17]; Respondent's Outline of Submissions on Appeal, 28 November 2018 at [14]

[42] As we earlier noted the Appellant argued before us, though not before the Commissioner, that to the extent that Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd decided that a legitimate expectation of the CFMEU founded a right to procedure fairness, it was incorrectly decided. As we have pointed out, this is not what was decided in Collinsville Coal.

[43] See for example Appeal book at 156-165 (CFMMEU Submissions, 24 August 2018 at [6]-[13], [17] and [19]) and Appeal book at 52-91 (Transcript , 27 September 2018 at PN71, PN113, PN121-123, PN141 and PN314)

[44] Appeal Book at 64, Transcript , 27 September 2018 at PN 123

[45] Appeal Book at 179 - 180 (Supplementary Submissions of the CFMMEU 19 September 2018 at [10])

[46] [2018] FWC 6519 at [14]

[47] Appeal Book at 173 (Submissions of the Applicant, 12 September 2018 at [23])

[49] [1985] HCA 28, (1985) 59 ALJR 481, (1985) 60 ALR 68

[51] [1986] HCA 33; (1986) 162 CLR 1

[52] Ibid at 8; see also O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319

[53] Appeal Book at 157-161 and 165 (CFMMEU submissions at [6] - [16] and Appendix); Appeal Book at 179 - (Supplementary Submissions of the CFMMEU 19 September 2018 at [10] - [13]);

[59] Appeal Book at 179-181 (Supplementary Submissions of the CFMMEU 19 September 2018 at [10] - [13])

[60] [2018] FCAFC 146, (2018) 281 IR 318

[62] Section 172(1)(b) of the Fair Work Act 2009

[64] Appeal Book at 123, clause 31.1.2 (a)

[66] [2018] FCAFC 146, (2018) 281 IR 319 at [65]- [77]

[67] See Appeal Book at 147; see also s.182(3) of the Act.

[68] Appeal Book at 180-181(supplementary submissions of the CFMMEU 19 September 2018 at [11] - [13]

[69] [2019] FWCFB 1717 per Gostencnik and Colman DPP.

[72] The Respondent relies on the material in the Appeal Book at 155; [16]-[20] of the Statement of Ryan Murphy

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