Fair Work Act 2009

s.185 - Enterprise agreement

The Trustee for the Tim Brown Family Trust ATF Mechanical Maintenance Solutions Pty Ltd T/A Mechanical Maintenance Solutions Pty Ltd

Application for approval of the MMS Latrobe Valley Enterprise Agreement 2018 - right to be heard where not a bargaining representative - rights under existing enterprise agreement.

[1] Application has been made for approval of the MMS Latrobe Valley Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Trustee for the Tim Brown Family Trust ATF Mechanical Maintenance Solutions Pty Ltd (MMS). The Agreement is a single enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), the Australian Workers' Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) each sought to be heard in opposition to the application.

[3] This decision deals with the request of each union to be heard in relation to the application.

[4] The Agreement covers MMS and its employees in the classifications listed in Appendix 1 to the Agreement. It applies to work performed at the Loy Yang A, Loy Yang B and Yallourn power stations in Victoria. It also applies to MMS's workshop at Centre Road, Morwell in Victoria but does not apply to supervisory or administrative employees.

[5] The duties associated with classifications MMS1 to MMS8 in Appendix 1 of the Agreement are Confined Space Hole Watch, General Labourer/Fire Watch, Trades Assistant, Cleaner/Peggy, Storeperson, Basic, Intermediate and Advanced Rigger, Basic, Intermediate and Advanced Scaffolder, Dogger, Mobile Crane Operator or Crane Driver, Welder Non Trade, Tradesperson Level 1 and 2, Electrician, Dual Trade Qualified and Instrument Fitter.

[6] It is not in dispute that some of the employees who will be covered by the Agreement are currently employed under the Mechanical Maintenance Solutions Pty Ltd (MMS) Latrobe Valley Power Stations (AMWU and CFMEU) Greenfields Enterprise Bargaining Agreement 2012-2016_[1]_ (the Greenfields Agreement).

[7] The Greenfields Agreement covers MMS, the CFMMEU, the AMWU and:

"all Company employees who are engaged in maintenance work on the Power Stations and Open Cut Mine sites in the Latrobe Valley (excluding Yallourn W Power Station and Mine) in the classifications and occupations listed in Clause 35 Appendix 1. The Agreement does not apply to work (other than maintenance work) within the definition of "general building and construction" in the Building and Construction General On-Site Award 2010. The Agreement applies to the exclusion of any other agreement."

[8] The classifications and occupations listed in clause 35, Appendix 1 are Supervisor Levels 1 and 2, Team Leader, Tradesperson Special Class Levels I and II, Pressure Welder, Crane Operator, Tradesperson, Basic, Intermediate and Advanced Scaffolders and Riggers, Intermediate Dogman, Trades Assistant, Storeman and Peggy

[9] While the scope of the Agreement is broader than the Greenfields Agreement, there is also an overlap in coverage in relation to employees working at the Loy Yang A and Loy Yang B power stations employed to perform the duties of Trades Assistant, Peggy, Storeperson, Basic, Intermediate and Advanced Scaffolder or Rigger, Dogger, Crane Operator or Driver, Welder or Tradesperson.

[10] Separately, the MMS Enterprise Agreement 2016-2020 (2016 Agreement) covers MMS and its employees in the classifications listed in Appendix 1. However, it does not apply to work performed at Woodside Off Shore Facilities in Western Australia, the Loy Yang A, Loy Yang B, Yallourn W or Hazelwood power stations in Victoria or MMS's workshop at Centre Road, Morwell in Victoria.

[11] It is not in dispute that none of the unions seeking to be heard in this matter were bargaining representatives or participants in the agreement making process.

[12] The CFMMEU and the AWMU each say they each have a right to be heard in this matter because they have rights under the Greenfields Agreement that will be extinguished by any decision to approve the Agreement. They refer to the decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd[2] and the passage cited in that decision from Kioa v West[3] dealing with the duty to accord procedural fairness in the making of administrative decisions. The unions point to the agreement variation and termination provisions in Division 7 of Part 2-4 of the Act in support of their submission that the legislature intended the Commission to hear from unions covered by enterprise agreements that may be terminated or replaced. It says there is no clear contrary intention in the agreement approval provisions of the Act.

[13] The unions also submit that they have a history of industrial relations with MMS and the power stations to which it provides labour, including in their capacity as parties to the Greenfields Agreement. They say there are reasonable grounds for believing that the Agreement was not genuinely agreed having regard to anonymous information they say can be verified in cross-examination of MMS witnesses as a result of their participation in a hearing of the substantive application. The AMWU submits that the Agreement should have been made as a greenfields agreement, but does not dispute that there are employees who will be covered by the Agreement. For these reasons, the unions say I should exercise my discretion to hear from them in the matter under section 590 of the Act.

[14] MMS says the unions do not have standing to be heard. It refers to the High Court of Australia decision in Minister for Immigration and Border Protection v WZARH and Anor[4] which rejected the purported doctrine of 'legitimate expectation' in administrative law. It says to the extent that the interests of the unions are affected by any agreement approval decision, the effect is indirect because it is a consequence of the statutory scheme, not the approval decision.

[15] MMS says the Act provides only for the makers of enterprise agreements and bargaining representatives to be heard in relation to agreement approval applications. It says the complexity of the Act's agreement-making framework suggests a legislative intention to 'cover the field' on the subject matter. If it had been intended that unions whose role under an enterprise agreement was to be displaced by the approval of another enterprise agreement had the right to participate in the approval proceedings, the Act would say so. It says to confer standing on intervenors who were not bargaining representatives for the Agreement, where no such right to intervene exists, would be inconsistent with the statutory scheme.

[16] MMS also says the unions do not have any particular relevant or useful knowledge that may assist the Commission in dealing with the substantive application. For this reason, it urges against the exercise of discretion under section 590 of the Act to hear from each of the unions in the circumstances.

[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.[5] It is also true that there are differences in the main agreement-making and agreement variation provisions of the Act.[6] 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.[7] 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.[8]

[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.[9]

[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] None of the unions seeking to intervene in this matter have a right to be heard.

[24] I will accept submissions in the matter from the CFMMEU and the AMWU on the limited basis described above.

[25] The requests to be heard are determined accordingly.

[26] Directions will be issued separately for the further programing of the matter.

E Hawthorne for Tim Brown Family Trust ATF Mechanical Maintenance Solutions Pty Ltd

D Vroland for the Construction, Forestry, Maritime, Mining and Energy Union

J Gardner for the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2] [2014] FWCFB 7940 at [50]

[3] [1985] HCA 81; (1985) 159 CLR 550

[4] (2015) 256 CLR 236

[5] Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84 at [84]

[6] [2014] FCAFC 84 at [101]

[7] [2016] FWCFB 2654

[8] [2016] FWCFB 2654 at [31]

[9] (2015) 256 CLR 236 at [30]

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