Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd

THE COURT: 1 The applicant, the Construction, Forestry, Mining and Energy Union (Union), applies for the following relief under s 39B of the Judiciary Act 1903 (Cth), ss 562 and 563 of the Fair Work Act 2009 (Cth) (the FW Act) and ss 21, 22 and 23 of the Federal Court Act 1976 (Cth): (1) A writ in the nature of certiorari to remove into this Court so far as is necessary proceedings C2017/1073 in the Fair Work Commission (FWC) for the purpose of quashing the Decision of the Second Respondent made on 23 May 2017 in Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FWCFB 2459. (2) A writ in the nature of mandamus to direct that a Full Bench of the Second Respondent hear and determine the application in proceedings C2017/1073 according to law.

Background 2 The following background which is drawn substantially from the parties written submissions is uncontroversial. 3 The following sequence of events occurred, as appears from Thiess' evidence, as adopted by Commissioner Roe at first instance at [20], and the Form F17 filed in the FWC by Thiess, and further passages of Thiess' evidence:- "13. During the last quarter of 2016, Thiess was working towards 'Preferred Contractor' status for the Mt Pleasant Mine Project. The project time line was tight and the equipment requirements were significant. In order to be in the best position to be able to deliver on the project, Thiess took action in late October 2016 in anticipation of it being appointed in late November 2016. 14. A key consideration for Thiess was the equipment list which had been compiled for the project. The equipment list identified equipment at a variety of different Thiess locations all over the country - from Prominent Hill in South Australia to its Nebo compound in North Queensland. Having reviewed the equipment list, Thiess immediately identified a number of challenges, including that: (a) some of the equipment had been disused for long periods of time (up to four years); (b) some of the equipment was not equipped to mandatory specifications, including for example: (i) a lack of appropriate sound attenuation equipment having regard to the proximity of the project to the nearest town; (ii) additional safety equipment requirements, such as handrails and steps; (iii) general maintenance requirements, such as engine maintenance, tyre replacement and rim repairs; and (iv) other regulatory requirements to enable the equipment to operate in New South Wales Coal Mines; (c) some of the equipment had an unknown maintenance history and state of repair. 15. With an unknown but clearly significant maintenance and mobilisation lead- time due to the above factors, Thiess determined that a pre-mobilisation team was required. 16. Additional work requirements were also identified, including the timely formulation of site procedures such as safe operating procedures. 17. As a result, Thiess decided to appoint a pre-mobilisation team to perform the work identified above. A team of three was considered appropriate. 18. With a focus on mechanical maintenance work, the maintenance team at the Brisbane-based Thiess Component Rebuild Centre (TCRC) was targeted. 19. Expressions of interest were sought from the maintenance team at the TCRC on 28 October 2016. Three employees were selected during the week commencing 31 October 2016. The work requirements and the nature of the project were described to each of the three employees. The three employees transferred to the Mt Pleasant Mine Project pre-mobilisation team from 7 November 2016. 20. The team consisted of two diesel fitters and one boiler maker. While this was entirely consistent with the maintenance and mechanical requirements of the pre- mobilisation work, Thiess determined that the employees would also benefit from practical on-site training particularly preparatory requirements for mobilising equipment to site. 21. During the week, commencing on 7 November 2016, the Employees attended Thiess' Brisbane Office to carry out an induction for their new roles. During induction: (a) the Employees learnt about the Mount Pleasant Mine Project and the need for premobilisation activities; and (b) the Employees' role in the pre-mobilisation activities was explained to the Employees and an overview and schedule of the work required going forward was provided to the Employees." 4 On 7 November 2016, Thiess commenced the necessary prerequisites for the making and filing for approval of the MTP Enterprise Agreement 2016 ("the Enterprise Agreement"). These steps included initiating bargaining and providing the last notice of representational rights to an employee who will be covered by the Enterprise agreement on 7 November 2016. As Thiess submitted before the Commission: "22. On 14 November 2016, as part of the pre-mobilisation activities for the Mount Pleasant mine Project, the Employees travelled to Thiess' Nebo compound and the Burton Mine for a week to inspect and assess the state of repair of trucks (including the handrails, access steps, seating, truck body condition, fire equipment, tyres and rims) and other equipment for potential use at the Mount Pleasant Mine Project. The Employees inspected and completed condition reports for maintenance planning so that required repairs could be planned and coordinated in accordance with the Mount Pleasant Mine Project development schedule From 22 November 2016, the pre-mobilisation team was relocated to Mt Thorley to continue premobilisation preparation activities for the Mt Pleasant Mine Project. The purpose of the team's work at Mt Thorley included: (a) inspecting and repairing equipment so that it was ready, when required, for use at the Mount Pleasant Mine Project; and (b) on-the-job training on mobilising the heavy mining equipment which would be needed for the Mt Pleasant Mine Project. 24. Thiess was satisfied that this experience would expose the employees to specific mobilisation activities including NSW-specific equipment specification regulatory requirements and afford the employees training in precisely the work that would continue to be required in the lead-up to commencement of operations at the Mount Pleasant Mine Project. The experience at Mt Thorley afforded the employees specifically relevant training in pre-mobilisation work.'" 5 Voting for the Enterprise Agreement commenced on 29 November 2016, and the agreement was made on 29 November 2016. It was not in issue that the employees who voted were engaged at that time, and at least until the time of the hearing, in the work described by Commissioner Roe. 6 It follows that the evidence before the Commission, which was not challenged on appeal, was to the effect that the work being undertaken by the 3 employees was, between 7 November 2016 and at least 24 January 2017, work of the nature described in [20] of the Commissioner's decision. The employees were undertaking that same type of work in the course of their employment by Thiess during the entire period from their transfer to the premobilisation team in late October 2016, through the period of the making of the agreement and for some months thereafter. 7 At the time the Enterprise Agreement was approved by the three employees Thiess did not have preferred contractor status for the Mt Pleasant Mine Project. 8 On 30 November 2016, Thiess applied to the FWC to have the Enterprise Agreement approved pursuant to s 185 of the FW Act. The application was heard by Commissioner Roe on 29 January 2017. As at that date, Thiess had not yet been awarded the contract in respect to the Mt Pleasant Mine that it was seeking. That event did not occur until 13 April 2017. 9 As a precondition to approving such an agreement, the FWC, under s 186 of the FW Act must be satisfied as to a number of discrete matters. Relevantly s 186 provides: 186(2) The FWC must be satisfied that: (a) if the agreement is not a greenfields agreement--the agreement has been genuinely agreed to by the employees covered by the agreement; and … (3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen. 10 By decision dated 6 February 2017 the Commissioner dismissed the application for approval because: (a) he was not satisfied that s 186(2)(a) of the FW Act had been met as he was not satisfied that the employees who voted for the Enterprise Agreement were in fact covered by it; (b) he was not satisfied that the group of employees covered by the Enterprise Agreement were fairly chosen and therefore ss 186(3) had not been met; and (c) there are no other reasonable grounds for believing that the Enterprise Agreement had not been genuinely agreed to by the employees, and therefore s 188(c) had not been met. 11 On 27 February 2017, Thiess filed a notice of appeal pursuant to s 400(1) of the FW Act which challenged the decision reached by the Commissioner by reference to all of the three grounds. 12 The appeal was heard by the Full Bench of the FWC on 2 May 2017. 13 Written submissions were filed, and submissions were made at hearing, on all three findings by the Commissioner. 14 The Full Bench, on 23 May 2017, delivered its decision and found that the Commissioner erred in finding that the employees were not covered by the Enterprise Agreement for the purposes of s 186(2)(a) of the FW Act. It concluded that the description in the Enterprise Agreement of the "Mount Pleasant Mine Project" is capable of including work associated with winning work, work undertaken in anticipation of winning work and work in readying or preparing for the commencement of work at the Mt Pleasant Mine in the event that work for which a tender was submitted, is awarded . Consequently, as the three employees were engaged in such work they were covered by the Enterprise Agreement when voting to approve it. 15 The Full Bench failed to consider at all whether the Commissioner erred in his findings of non-satisfaction under s 186(2)(a) (when read with s 188(c)) and under 186(3) of the FW Act. 16 The Full Bench proceeded to grant permission to appeal, upheld the appeal, quashed the decision to dismiss the application for approval and remitted the approval of application for approval to another Commissioner. 17 There was some controversy as to whether the Commissioner dismissed the appeal upon each of these grounds or only the first. We are of the opinion that his decision proceeded from all three. The Commissioner stated at [41]-[42]. [41] I am not satisfied that the employees who voted for the Agreement were covered by it. Section 186(2)(a) is therefore not met and I cannot approve the Agreement. The Application for approval of the Agreement is therefore dismissed. [42] If I am wrong about this then I am not satisfied that the scope of the Agreement was fairly chosen, having regard to the issue of geographical, operational and organisational distinctiveness and other factors. Section 186(3) and (3A) are therefore not met and I cannot approve the Agreement. I would also not be satisfied that the Agreement has been genuinely agreed to by the employees. If Section 188(c) is not met I could not approve the Agreement. 18 We will return to this aspect of the appeal later in these reasons.

Ground 1: The Construction Ground 19 Clause 3 of the Enterprise Agreement specified who it was that the Enterprise Agreement covered. The clause provided: 3.1 The Agreement covers and, subject to the provisions of Part 2-1 of the Fair Work Act 2009 (Cth) (the FW Act), applies to: (a) Thiess Pty Limited (The Company); and (b) Employees of The Company who are engaged to work at, or in connection with, the Mt Pleasant Mine Project (including any work necessary for and preparatory to work at the Mt Pleasant Mine Project), and for whom classifications are contained in the Agreement (Employees). 3.2 The Agreement does not cover, or apply to, employees who are engaged to principally perform managerial, professional, supervisory and or administrative duties. 20 The Union contended that the Full Bench misconstrued clause 3. It did so relying upon a contention not put to the Full Bench. 21 Insofar as that contention sought to articulate a jurisdictional error on the part of the Full Bench, it was said that the Full Bench wrongly exercised its jurisdiction under s 607(3)(a) of the FW Act to quash the decision of the Commissioner. That was contended to be a consequence of the Full Bench overlooking the statutory requirement that the "Mt Pleasant Mine Project" be a "single enterprise". 22 The term "single enterprise" is relevantly defined in s 168A(3)(a) of the FW Act as follows: (3) A single enterprise is: (a) a business, project or undertaking that is carried on by an employer; ... 23 The Union's contention was that the "Mt Pleasant Mine Project" referred to in Clause 3 of the Enterprise Agreement was not referring to a project carried on by Thiess, but instead referring to the project or undertaking of the owner or operator of the Mt Pleasant Mine. Accordingly, so the Union contended, the employees covered by the Enterprise Agreement were not working in the single enterprise described by the Agreement. 24 Accepting for the purpose of the argument that it was necessary for the Full Bench to have appreciated that the employees covered by the Enterprise Agreement were employees who were working in the single enterprise described by the Enterprise Agreement, we do not accept that the Full Bench either misunderstood or overlooked any statutory requirement that the "Mt Pleasant Mine Project" be a "single enterprise". There is nothing in its reasons which suggests that the Full Bench did so. 25 In any event, we do not accept the foundation upon which the Union's contention was put, that the reference in clause 3.1(b) to the "Mt Pleasant Mine Project" is not an intended reference to a project or undertaking of Thiess. 26 That contention was based upon the phrase "work at" in the first line of clause 3.1(b). The Union contended that the phrase served to indicate that the project contemplated by the clause was being characterized by reference to its physical location (ie the site of the Mt Pleasant Mine) rather than by reference to its activities. If locationally focused, the Union contended that the phrase "Mt Pleasant Mine Project" is likely to be a reference to the undertaking conducted by the owner or operator of the mine. 27 We do not consider that, in the context in which clause 3 was framed, the word "at" can be given the work that the Union's submission envisages. The clause is clearly directed to employees who work for Thiess. As such those employees must necessarily be employed in an undertaking that is carried on by Thiess. We consider that the phrase "the Mt Pleasant Mine Project" was intended to describe that undertaking. 28 Insofar as the Union continued to rely upon the construction argument put to the Full Bench, we consider the Full Bench to have been correct for the reasons it gave in rejecting that argument. 29 This ground of the application must accordingly be rejected. Failure to consider grounds 30 The Union also appeals against the failure of the Full Bench to consider its "substantial, clearly articulated argument relying on established facts" (to use the words of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389, namely that, even if the Commissioner was wrong on the coverage point, his decision not to approve the enterprise agreement should nonetheless be upheld, and Thiess' appeal dismissed, because the Commissioner correctly found that the group of employees covered by the agreement was not "fairly chosen" within the meaning of s 186(3) of the FW Act and/or that the Commissioner was not satisfied that the enterprise agreement had been genuinely agreed to by those employees within the meaning of s 186(2)(a) of the FW Act. 31 Counsel for the Union submitted (and counsel for Thiess ultimately did not contend otherwise) that those two additional grounds constitute separate and independent grounds upon which the Commissioner was entitled to, and did, refuse to approve the agreement under s 186. That is consistent with the separate and relevant matters with which the Commission must be satisfied under s 186 before the Commission "must approve" the enterprise agreement. That is to say, before the Commission must approve the enterprise agreement, it relevantly "must be satisfied": (1) that the agreement has been genuinely agreed to; (2) by employees covered by the agreement; and (3) those employees covered by the agreement were fairly chosen. 32 Both the Union and Thiess made detailed submissions about each of these issues before the Commissioner and the Full Bench. The Full Bench, however, did not decide either the "fairly chosen" or "genuine agreement" grounds, reasoning as follows (at [6]): Although the Commissioner devoted many paragraphs of the Decision to the question whether the group of employees covered by the Agreement was fairly chosen, and also a few paragraphs to the question whether there are reasonable grounds for believing that the [Enterprise] Agreement had not been genuinely agreed to by the employees, it seems to us, on the basis of the paragraphs set out above that the Commissioner decided to dismiss the application on the basis that the employees who voted for the Agreement were not covered by it. Once he had dismissed the application, as the Commissioner apparently did at [41] there was nothing more to consider so far as the application was concerned. It ended there. We therefore propose to deal with the question of whether permission to appeal should be given, and if so whether the appeal should be upheld by reference to the one ground of appeal raised by Thiess relating to the coverage issue. 33 In our view, that paragraph demonstrates obvious error, not only because it is incorrect to characterise the Commissioner's reasons with respect to the coverage point as being the "end" of the issues necessary to be decided, but because it is also wrong for the Full Bench to have concluded that the Commissioner "decided to dismiss the application on the basis that the employees who voted for the Agreement were not covered by it". In our view, the approach taken by the Commissioner was entirely consistent with the proper approach to deciding cases, where multiple (substantial, clearly articulated) grounds are advanced, namely, that it is, generally speaking, necessary, or at least desirable, for the decision-maker to deal with all grounds, not just the ground that the decision-maker regards as decisive. Compare, with respect to the obligations of intermediate courts of appeal, Kuru v New South Wales (2008) 236 CLR 1 at 6 [12]. In our view, the position is no different in cases, such as this, before the Commission, where cumulative statutory criteria must be satisfied before the Commission can or must act. The Commission, ordinarily, must decide each of such necessary matters, not just that which is identified as the decisive ground. In our view, that is precisely what the Commissioner did in this case. 34 In our view, for those same reasons, the Full Bench ought to have dealt with the submissions of the parties with respect to both the "fairly chosen" and "genuine agreement" grounds and it erred in law in quashing the decision of the Commissioner without considering those grounds. Compare Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 at [123]. 35 Counsel for Thiess contended, albeit faintly, that the orders made by the Full Bench quashing the Commissioner's decision to refuse to approve the agreement and remitting the application for approval to another Commissioner, was just, as a "practical" matter. In our view, there is nothing remotely just about denying the Union the fruits of its victory given to it by the Commissioner in refusing to approve the application on the grounds that the relevant employees were not fairly chosen and that the Enterprise Agreement had not been genuinely agreed to. 36 For the foregoing reasons, the Union is entitled to the substance of the relief it seeks in its originating application dated 29 May 2017. 37 The Court will therefore order as follows:

1. A writ in the nature of certiorari issue to remove into this Court so far as is necessary proceedings C2017/1073 in the FWC for the purpose of quashing the Decision of the Second Respondent made on 23 May 2017 in Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FWCFB 2459.
2. A writ in the nature of mandamus issue to direct that a Full Bench of the Second Respondent hear and determine the application in proceedings C2017/1073 according to law in respect of grounds 2-7 in the Notice of Appeal dated 27 February 2017 but having regard to these reasons. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.