[2019] FWCFB 1717
The attached document replaces the document previously issued with the above code on 15 April 2019.
In paragraph [40] the mention of s.180(2) should be amended to read s.185(2).
Associate to Deputy President Gostencnik
Dated 31 May 2019
| [2019] FWCFB 1717 [Note: a correction has been issued to this document] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
v
Griffiths Cranes Pty Ltd
(C2018/7270)
DEPUTY PRESIDENT GOSTENCNIK |
SYDNEY, 15 APRIL 2019 |
Appeal against decision [2018] FWC 6708 of Commissioner Lee at Melbourne on 11 December 2018 in matter number AG2018/5007 – whether application to approve an enterprise agreement which is not accompanied by a signed copy of the agreement is invalid and of no effect – whether the requirement in s.185(2) may be waived under s.586(b) – permission to appeal granted – appeal upheld and decision quashed.
[1] In a decision published on 11 December 2018 (Decision), 1 Commissioner Lee dismissed an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for the approval of the Griffiths Pty Ltd t-as Botany Cranes & Forklift Services/CFMEU Collective Agreement 2018 (Agreement). The CFMMEU seek permission to appeal and appeals the Decision.
[2] The Agreement is expressed to cover Griffiths Pty Ltd (Griffiths), a misdescription to which we will return, and its employees who are eligible to be members of the CFMMEU engaged in work in New South Wales. 2 The CFMMEU is a bargaining representative for the Agreement and in that capacity made an application under s.185 of the Fair Work Act 2009 (Act) for approval of the Agreement on 6 September 2018. The application was not accompanied by a Form F17 – Employer’s Statutory Declaration nor a copy of the Agreement signed by Griffiths, contrary to the requirements of reg 2.06A of the Fair Work Regulations 2009 (Regulations). The Agreement lodged with the application is however signed by the NSW State President of the CFMMEU.
[3] On 13 September 2018, Griffiths through its legal representative wrote to the Commission advising that it did not consent to the approval of the Agreement, had not properly been consulted by the CFMMEU and did not agree to the terms of the Agreement. 3 By correspondence to the Commission dated 14 September 2018,4 Griffiths’ legal representative contended, inter alia, that the application for approval must fail as the prerequisites contained in s.185(2) had not been satisfied and that in any event no enterprise agreement had been made.
[4] The Commissioner convened a mention hearing on 20 September 2018 at which the parties apparently agreed that the question whether there was a valid application to approve the Agreement, absent the application being accompanied by a signed copy of the Agreement as required by s.185(2) of the Act, would be determined as a preliminary question. The parties also agreed that the question could be determined on the papers without the need for a hearing. The Commissioner issued directions for the filing of submissions in relation to the preliminary question identified.
The decision the subject of appeal
[5] After setting out various introductory and background matters at [1]-[8] of the Decision, and summarising the parties’ competing contentions at [9]-[25], the Commissioner begins his consideration at [26].
[6] At [29] of the Decision the Commissioner sets out the essence of the issue that he is asked to determine as follows:
“...whether the Commission has power to approve an enterprise agreement pursuant to s.186(1) of the Act if the application is not accompanied by a copy of the enterprise agreement signed by the employer.” 5
[7] At [30]-[32] of the Decision, the Commissioner discusses Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sustaining Works Pty Limited 6 (Sustaining Works) in which a Full Bench of the Commission discussed the import of s.185(2) of the Act and considered the exercise of the discretionary power in s.586(a) in relation to an application for approval of an agreement which is not accompanied by a signed copy of the agreement in accordance with s.185(2) and reg 2.06A of the Regulations.
[8] At [33] of the Decision, the Commissioner states that Sustaining Works had not definitively determined the consequence of an application not being accompanied by a signed copy of the agreement, but that he considered that the Full Bench had regarded the signing provisions as ‘mandatory’ and requiring compliance. At [34] of the Decision, the Commissioner rejects the CFMMEU’s submissions on the construction of s.186, including the contention that the absence of a reference to the signature requirements in that provision suggests they are not mandatory.
[9] The Commissioner concludes that an application which is not accompanied by a signed copy of the agreement for which approval is sought is “invalid”. The Commissioner reasoned as follows:
“...The employer submits that if the CFMMEU’s interpretation that the requirements prescribed by s.185(2) of the Act and 2.06A of the Regulations, including the signing of the agreement, are a not condition precedent then those sections would be entirely futile. I agree with the Full Bench in Sustaining Works that an application under s.185 must be one made in accordance with it and it is not open to the Commission to ignore a failure to comply with the signature requirements. The word “must” in s.185(2) is language in mandatory form. It follows that an application under s.185 not accompanied by a signed copy of the Agreement pursuant to s.185(2)(a) of the Act, is not an application made in accordance with it and the application to approve the agreement is invalid.” 7
[10] Next, at [35] of the Decision the Commissioner agrees with the CFMMEU that s.586 of the Act allows the Commission to amend applications (or accompanying material) by allowing an amended or revised signature page of an agreement that after lodgement does not meet the signing requirements of reg 2.06A. The Commissioner concludes however that exercising his discretion to correct under s.586 would be futile in the face of Griffiths’ indication that it will never sign the Agreement. 8
[11] Ultimately, the Commissioner dismissed the application for the approval of the Agreement because he considered that the production of a signed copy of the Agreement in accordance with reg 2.06A of the Regulations is a requirement of a valid agreement approval application. So much is clear from the following passages of the Decision:
“[36] The CFMMEU also submit the information in the Form F17 can be provided from other sources and that the matter should be programmed for hearing in relation to compliance by the employer with the pre-approval steps. There is simply no utility in pursuing that course because the Agreement lodged was not signed by the employer covered by the Agreement. The employer has made it clear in this case that it will not provide a signed copy of the Agreement. There is therefore not a valid application under s.185 of the Act before the Commission and the employer has made it clear there will not be.
[37] The CFMMEU has not supplied a signed copy of the Agreement in accordance with s.185(5) and the associated Regulation 2.06A, therefore, the application does not meet the requirements of s.185(2) of the Act. The employer in this matter has advised the Agreement will never be signed by the employer. The Application is therefore not a valid application and cannot be approved. It follows that the Agreement does not meet the requirements for approval and for the reasons given I cannot approve the agreement.
[38] The application is therefore dismissed.” 9
Grounds of appeal
[12] The CFMMEU advanced three grounds of appeal set out in its Notice of Appeal, which in summary contend that the Commissioner erred:
• in determining that he did not have jurisdiction to approve the Agreement under s.186(1) by reason of the application lodged by a bargaining representative for the Agreement not being accompanied by a signed copy of the Agreement;
• in construing the relevant provisions of the Act as determining that an application for approval of the Agreement was invalid if it was not accompanied by a signed copy of the Agreement; and
• in misconstruing ss.185-186 of the Act by failing to pay regard to the purpose and object of ss.185-186, the mischief to which s.185(2) was directed and the scheme of agreement making and bargaining effected by Part 2-4.
[13] The gravamen of the CFMMEU’s complaint raised by the appeal is that the Commissioner wrongly answered the preliminary question put to him by the parties, namely whether there was a valid application to approve the Agreement, absent a copy of the Agreement signed by the employer as required by s.185(2). According to the CFMMEU, the answer turned on whether as a matter of statutory construction the Act evinces an intention that non-compliance with s.185(2) and the associated requirements prescribed by reg 2.06A made pursuant to s.185(5) meant that the Commission had no power or discretion to approve the Agreement.
[14] A secondary complaint is that the Commissioner was asked only to determine the preliminary question. He was not asked to consider exercising a discretion under s.586 of the Act. However having proceeded to turn his mind to that issue, the Commissioner confined his consideration to s.586(a), namely the Commissioner’s power to correct or amend an application. The Commissioner did not consider the power under s.586(b) to waive an irregularity in the form or manner in which the application was made.
Permission to appeal
[15] The appeal grounds raise questions on which there are differing views expressed in first instance decisions of the Commission. We are therefore persuaded that the public interest is enlivened and that it is appropriate that a Full Bench of the Commission give consideration to the questions raised by the appeal. We therefore must grant permission to appeal and we do so.
Whether an application that is not accompanied by a signed copy of the agreement is invalid and therefore a nullity
[16] In summary, the CFMMEU contends that its application for the approval of the Agreement was valid because the relevant provisions of the Act, properly construed, give the Commission the power or discretion to approve such an agreement.
[17] Griffiths contends as follows:
• the requirements of s.185(2) of the Act are clear, unambiguous and decisive;
• any application for approval of a single enterprise agreement must be accompanied by a signed copy of the agreement;
• reg 2.06A of the Regulations is also clear and requires that the “signed copy” of an agreement accompanying the application be signed by the employer for the purposes of s.185(2) of the Act;
• in circumstances where the CFMMEU’s application was not accompanied by a signed copy of the Agreement, the application was invalid and it was correct and appropriate for the Commissioner to refuse the application as he did; and
• the CFMMEU seeks to go beyond this clear mandatory language.
[18] We should indicate at the outset that we do not consider that the Commissioner’s reference to the invalidity of the application to approve the Agreement should be read as intending to convey that the application is a nullity and of no effect. Reading the Decision as a whole, we consider the Commissioner was conveying that the application was not made in accordance with the Act and was defective or irregular by reason of the application not being accompanied by a signed copy of the Agreement. The Commissioner was correct in concluding that he could not approve the Agreement under s.186(1) if the application for its approval was not made in accordance with the Act. The Commissioner correctly observed that s.185(2) is expressed in mandatory terms. 10 He said, again correctly, that an application which is not accompanied by a signed copy of the agreement as required by s.185(2)(a) of the Act “is not an application made in accordance with” the Act.11 The reference to the application being “invalid” which immediately follows is fairly to be read as underscoring the finding that the application was not made in accordance with the Act rather than as concluding that the application was a nullity and incapable of rectification. This seems clear from the Commissioner’s recognition that recourse may be had to s.586 of the Act to accept an amended or revised signature page for an agreement after it has been lodged.12 Invalidity in the sense of an act being a nullity and incapable of rectification would not be amenable to cure by the exercise of a power in s.586.
[19] However, as the appeal proceeded on the basis that the Commissioner concluded that the application was invalid and therefore a nullity, we will deal with that issue.
[20] The question whether a failure to comply with a statutory condition in doing an act renders that act invalid is a question of statutory construction. The starting point for this consideration is the proposition that not all failures to comply with a statutory pre-condition result in invalidity. So much is made clear in the judgment of McHugh JA (with whom Hope JA agreed) in Woods v Bate 13 wherein his Honour said:
“In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition. Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice...” 14 [Citations omitted]
[21] The dichotomy between mandatory and directory statutory requirements, evident in the passage cited above, has been eschewed by the High Court of Australia in favour of an approach of determining the validity of any act undertaken in breach of a statutory condition by reference to whether there is a legislative purpose to invalidate any act that fails to comply with the condition.
[22] In Project Blue Sky v Australian Broadcasting Authority 15 the High Court considered whether a failure to comply with a statutory condition by the Australian Broadcasting Authority in its promulgation of an Australian Content Standard was invalid. In considering the question McHugh, Gummow, Kirby and Hayne JJ in their joint judgment said:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said “a clause is directory where the provisions contain mere matter of direction and nothing more”. In R v Loxdale, Lord Mansfield CJ said “[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory”. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been “substantial compliance” with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case:
“substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.”
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”. 16 [Footnotes omitted, our underlining]
[23] Interpreting a statute requires taking expressions in their context, and construing them with proper regard to the relevant subject matter and the objects it seeks to achieve, so as to arrive at the meaning attached to them by those who use them. 17 Put another way, the interpretation of a statutory provision(s) requires reading the relevant statutory provision(s) consistently with the intended purpose or objects of the legislature as disclosed by the text of the statute and begins with an examination of the ordinary grammatical meaning of the words used in the context of the statute as a whole. This point was made clear in the joint judgment in Project Blue Sky wherein their Honours said:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.” 18
[24] Their Honours also observed that:
“A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.” 19
[25] The purposive approach to statutory construction is reinforced by s.15AA of the Acts Interpretation Act 1901 20 which provides that in interpreting a provision of an enactment “a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.” Having regard to these principles, we do not consider the relevant provisions which we discuss below disclose a statutory intention to invalidate an application under s.185(1) which is not accompanied by one or more of the instruments identified in s.185(2). We explain our reasons for this conclusion below.
[26] So far as is presently relevant, the object of the Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by, inter-alia, achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action. 21 The legislative mechanism by which an enterprise agreement may be made and then approved is contained in Part 2-4 of Chapter 2 of the Act. The objects of Part 2-4 are set out in s.171 as follows:
“171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”
[27] Subdivision A of Division 4 of Part 2-4 contains provisions for the preapproval steps that an employer is required to undertake in relation to a proposed enterprise agreement and those required of bargaining representatives for an agreement in respect of applications to the Commission for approval of an agreement once it has been made. Relevantly, by s.181(1) of the Act, an employer that will be covered by a proposed enterprise agreement may request employees employed at the time who will be covered by the agreement to approve the agreement by voting for it. Section 181(2) establishes a minimum period before which such a request may be made as follows:
“(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.”
[28] Section 182 provides that an agreement is made, relevantly, when a majority of the employees asked to approve the agreement under s.181(1) who cast a valid vote approve the agreement.
[29] Section 185 sets out the process by which and the time within which an application to the Commission for the approval of an enterprise agreement is to be made. Relevantly s.185(1) requires that a bargaining representative apply to the Commission, if an enterprise agreement is made, for approval of the agreement, and thereby imposes on the bargaining representatives for the agreement equally an obligation to apply. 22 That this is so is confirmed by the Explanatory Memorandum to the Fair Work Bill 2008:
“761. Subclause 185(1) requires a bargaining representative to apply for FWA approval of an enterprise agreement that has been made. This can be the employer, a bargaining representative for an employer, or a bargaining representative for an employee.” 23
[30] As is evident from the above, the scheme of the Act contemplates that if an enterprise agreement has been made, relevantly under s.182, a bargaining representative for the agreement must apply to the Commission for the agreement’s approval.
[31] Section 185(2) deals with material that must accompany an application and provides that the:
“…application must be accompanied by:
(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.”
[32] The underlying purpose of s.185(2)(a) is self-evidently to enable the Commission to be satisfied that the agreement it is being asked to approve is the one that was made under s.182(1). A signed copy of the agreement stands as a form of proof. Much the same explanation is given in the Explanatory Memorandum to the Fair Work Bill 2008, which provides relevantly as follows:
“762. Subclause 185(2) sets out the material that must accompany the application for FWA approval. The bargaining representative must provide FWA with a signed copy of the agreement and any other declarations required by the procedural rules of FWA. The requirement for a bargaining representative to provide FWA with a signed copy of the agreement is intended to ensure that the agreement that FWA considers for approval is the one that the parties have made . . .”
[33] Section 185(2) is directed to the bargaining representative applying for approval of an agreement under s.185(1). It requires the application made by the bargaining representative to be accompanied, relevantly, by a signed copy of the agreement for which approval is sought. The subsection does not speak to the validity of the application, rather it is concerned with proving the agreement that was made under s.182(1).
[34] However, the existence of a signed copy of the agreement does not establish the agreement was made under s.182(1). This is to be contrasted with the requirement of s.182(3) relating to greenfields agreements where signing by each employer and each relevant employee organisation that is covered by the agreement is a condition precedent to the agreement being made.
[35] An application to approve an agreement that is not a greenfields agreement must be made within 14 days after the agreement is made or within such further period as the Commission may allow if in all the circumstances it is fair to extend the period. 24
[36] Section 185(5) contains a power to make Regulations which may prescribe requirements relating to the signing of enterprise agreements. Pursuant to that power, reg 2.06A of the Regulations prescribes that a copy of an agreement is a signed copy only if it is signed by the employer cover by the agreement and at least one representative of the employees covered by the agreement, and includes the full name and address of each person who signs the agreement and an explanation of their authority to sign the agreement.
[37] Subdivision B of Division 4 of Part 2-4 contains provisions for the approval of enterprise agreements by the Commission. Section 186(1) requires the Commission to approve an enterprise agreement if an application has been made, relevantly under s.185, and if it is satisfied of the requirements in ss.186 and 187. The requirement in s.186(2)(a) is satisfaction by the Commission that the agreement has been genuinely agreed to by the employees covered by the agreement. This in turn calls for a consideration of s.188 which sets out when employees have genuinely agreed to an agreement and relevantly provides that an enterprise agreement has been genuinely agreed to by the employees covered by it if the Commission is satisfied that the agreement was made in accordance with, relevantly, s.182(1).
[38] Part 5–1 of the Act is also relevant. Division 3 of that Part is concerned with the conduct of matters before the Commission. Subdivision A of Division 3 is concerned with applications to the Commission. Section 586 sets out that the Commission may:
“(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.”
[39] Section 587 deals with dismissing applications and provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[40] We do not consider that a failure to comply with the requirement in s.180(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.
[46] The construction we favour is concordant with the plain meaning and interaction of the relevant provisions read in context. It also accords with the purpose or underlying object of the Act and in particular Part 2-4. A construction that an application which is not accompanied by an instrument as described in s.185(2) is a nullity and incapable of rectification or waiver under s.586 achieves the opposite. Furthermore, there can be little doubt that if an employer simply forgot to sign an agreement but made application to approve the agreement and supported its approval, the Commission could waive this irregularity. An irregularity in the signature page of an agreement lodged with an application for its approval might alternatively simply be corrected by allowing a substituted signature page to be filed to replace the irregular page, but the Commission would plainly in our view have power to waive non-compliance under s.586(b).
[47] As we have already observed, s.185(2) is concerned with proving the agreement that was made is the same agreement for which approval of the Commission is sought. Proving the agreement may also be achieved by other means. Indeed one consideration in determining whether the employees genuinely agreed for the purposes of s.188(1)(b) is whether the agreement submitted for approval by the Commission is the agreement made by employees under s.182(1). Self-evidently, if the agreement for which approval is sought is not the agreement that was made, then it cannot be the agreement that was made in accordance with s.182(1), about which there must be satisfaction under s.188(1)(b) of the Act.
[48] A failure to comply with s.185(2) means that the application made under s.185(1) is one that is not made in accordance with the Act. It does not render the application invalid in the sense that it is a nullity. As we have already observed, an application may be subject to dismissal pursuant to s.587(1)(a) but the exercise of that power is not automatic, it is discretionary. The existence of a discretionary power to dismiss an application that is not made in accordance with the Act also presupposes a discretion not to dismiss such an application. Although not every departure from the ‘application requirements’ in the Act will necessarily be an irregularity in the form or manner in which an application is made, in our view the affixation of a signature, as contemplated by s.185, is properly to be so described.
[49] A discretion not to dismiss an application that is not made in accordance with the Act would presumably be accompanied by the exercise of a discretion to waive an irregularity in the form or manner in which an application is made as contemplated by s.586(b) of the Act.
[50] Before concluding this aspect of the appeal, we wish to make some brief observations about the judgment in Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd 25 to which both parties referred in the first instance proceeding. The Commissioner correctly observed and the CFMMEU acknowledged that the issue that arose for consideration in the proceeding before him was not considered nor determined in Kaizen.26
[51] In Kaizen, Buchanan and Jagot JJ referred to the requirements imposed by s.185(2)(a) and reg 2.06A(2) as ‘requirements for a valid application’ for the approval by the Commission of an enterprise agreement. 27 Their Honours did so in the context of determining that an agent of the employers had signed an enterprise agreement on their behalf, within the scope of the agent’s apparent authority. Although the employers had argued otherwise, the Court held that the signature requirement of s.185(2) had been met. That is the ratio. Their Honours did not consider the question of whether the Commission could waive, under s.586(b), an irregularity in the form or manner in which the application for approval of the agreement was made. The issue simply did not arise, because the employers, through their agent, had in law signed the agreement.
[52] Further, we do not read their Honours’ reference to the requirements of a ‘valid application’ to suggest that where those requirements are not met, the application is fatally flawed and unsusceptible of remediation under s.586 of the Act. We understand the reference to a ‘valid application’, in the context in which it is used in Kaizen, to mean an application that is made in accordance with the Act. Plainly, an application that is not accompanied by a signed copy of the agreement as required by s.185(2) is not an application under s.185, and therefore not an application that can be further considered by the Commission under s.186. If this point of non-compliance were not redressed, the application would have to be dismissed. However in our view, the absence or omission of a signature is an irregularity for the purpose of s.586 that the Commission can waive in an appropriate case.
[53] The evident purpose of s.586(b) is to allow the Commission to proceed to focus on the substance of applications rather than irregularities in the form or the manner in which they are made. As we have already observed, not every departure from the ‘application requirements’ in the Act is necessarily a mere irregularity, but in our view the affixation of a signature, as contemplated by s.185, is properly so described.
[54] This interpretation of s.586(b) is in our view compatible with the scheme of the Act and as we said before, with s.587, which confers on the Commission a discretion, not an obligation, to dismiss an application that is not made in accordance with the Act. Logically, s.587 contemplates the Commission not exercising its discretion to dismiss non-compliant applications in some cases. That the Commission has such a discretion is antithetical to the theory that an application that does not comply with a requirement of the Act is ipso facto invalid and a nullity.
[55] In summary, we do not consider that the Act evinces a purpose to render an application to approve an agreement which is not accompanied by one or more of the instruments described in s.185(2) invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. This view is consistent with the approach adopted by the Full Bench of the Commission in Sustaining Works 28 albeit the Full Bench was there concerned with exercising the discretion in s.586(a), rather than s.586(b), in relation to an agreement which had not been signed in conformity with reg 2.06A of the Regulations and therefore was not a signed copy of the agreement as required by s.185(2). The Full Bench in Sustaining Works rightly observed that the Commission cannot ignore a failure to comply with the signature requirements in respect of enterprise agreements, but that statement is not to be taken as meaning that an application unaccompanied by a properly signed agreement is invalid. Sustaining Works simply recognises that the Commission must act in some way. It may dismiss under s.587 or it may correct or waive under s.586.
[56] It follows for the reasons stated that the application made by the CFMMEU for the approval of the Agreement under s.185(1) of the Act was not invalid merely because it did not comply with s.185(2). Its application was not made in accordance with the Act with the result that it was amenable to dismissal under s.587(1)(a) but that result need not necessarily have followed. The application was also amenable to remedial action under s.586. As we have earlier observed, we do not consider the Commissioner concluded that the application was invalid, but if contrary to our view he did so, then he was in error.
Discretion under s.586
[57] We turn next to the CFMMEU’s complaint about the Commissioner’s consideration of any action that might be taken under s.586 of the Act. The complaint is twofold. First, the CFMMEU contends that it did not ask the Commissioner to do anything beyond resolving the preliminary question of whether the application it had made was a valid application. Secondly, the CFMMEU contends that having turned his attention to remedial action under s.586, the Commissioner wrongly confined his consideration to s.586(a) and did not consider s.586(b).
[58] There is no real controversy that the Commissioner correctly concluded that there was no utility in the exercise of any corrective power under s.586(a) in the face of Griffiths’ clear and unequivocal position that it did not and would never sign the Agreement.
[59] There is nothing in the initial submissions filed by the CFMMEU before the Commissioner 29 which engages with the power in s.586. Similarly, the submissions filed by Griffiths30 do not travel beyond the preliminary question and do not mention nor engage with the power in s.586. In the CFMMEU’s reply submissions31 the following is said:
“Further to the matters relied on by the applicant in its 28 September submissions, s.586 conveys that it was not the intention of the legislature that an application for approval of an agreement strictly comply with s.185(2) of the FW Act. The general power to correct or amend applications or documents relating to matters before the Commission, or otherwise waive irregularities in the form or manner in which applications are made, illustrate that it was not intended that a failure to comply with the letter of the signature and accompanying declaration requirements under s.185(2) would vitiate an application for approval of an agreement. This is the logical consequence, in any event, of the decision in Sustaining Works.” 32
[60] The reference to the power in s.586 in the above passage is not a submission to the Commissioner that he ought to exercise the discretion in a particular way. Rather, the Commissioner is alerted to the existence of the section for the purposes of supporting the CFMMEU’s argument that non-compliance with s.185(2) of the Act does not render an application for the approval of an agreement invalid on a proper construction of the Act. It is not a submission as to the exercise of power.
[61] Therefore, we agree with the CFMMEU that the Commissioner was not asked to do any more than determine the preliminary question.
[62] Having proceeded to consider whether non-compliance with s.185(2) was amenable to remedial action under s.586, we agree that in the circumstances of this case, particularly the way in which the matter was conducted below and the preliminary question the Commissioner was asked to determine, that he erred in confining his consideration to remedial action under s.586(a).
[63] It follows for the reasons stated that the appeal is upheld. In so doing we propose to quash the decision and to remit the application to Commissioner Lee, but we express no view as to whether the discretion in s.586(b) should be exercised to waive the irregularity in the manner or form in which the CFMMEU’s application was made. Indeed, no party in the appeal addressed us on that question.
[64] As we earlier noted, the employer is misdescribed in the Agreement. There does not appear to be any controversy that the employer is Griffiths Cranes Pty Ltd, not Griffiths Pty Ltd. Depending on how the matter progresses before the Commissioner, the misdescription may require rectification.
[65] We make one final observation. Griffiths contends that it did not agree to the Agreement. Presumably this means that it contends that it did not ask employees to vote to approve the Agreement nor did it comply with the relevant preapproval requirements contained in s.180. Evidence about these matters is clearly relevant to the question whether there can or should be any waiver under s.586(b) or alternatively whether there should be a dismissal under s.587(1)(a). Moreover there would be no mere “irregularity” in the form or manner in which an application was made by a bargaining representative if the unsigned agreement accompanying an application for approval was not the subject of a request made by employer of employees to vote to approve that agreement. Rather, there would be no agreement made under s.182(1), because employees had not been asked to approve it under s.181(1). Such an application would properly be described as invalid, rather than one that is irregularly made.
[66] We order as follows:
1. Permission to appeal is granted;
2. The appeal is upheld;
3. The Decision in [2018] FWC 6708 is quashed; and
4. The application to approve the Agreement is remitted to Commissioner Lee.
DECISION OF COMMISSIONER MCKENNA
Introduction
[67] I have had the opportunity to read the draft decision of Gostencnik DP and Colman DP. For the reasons that follow, I have, with respect, reached conclusions which differ in a number of areas from those of my colleagues.
[68] The Construction, Forestry, Maritime, Mining and Energy Union (“CFMMEU”) has lodged an appeal, for which permission to appeal is required, against a decision 33 (“Decision”) of Commissioner Lee delivered on 11 December 2018 in relation to an application for the approval of a single-enterprise agreement titled the Griffiths Pty Ltd t-as Botany Cranes & Forklift Services/CFMEU Collective Agreement 2018 (“the Agreement”). In the Decision, the Commissioner dismissed the application for the approval of the Agreement.
[69] Shortly stated, the CFMMEU lodged an application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) for approval of the Agreement by the Commission. The Agreement was not signed by or on behalf of the employer company which is the respondent to the appeal, namely, Griffiths Cranes Pty Ltd 34 (which holds the business names “Botany Cranes” and “Botany Cranes & Forklift Services”) (“Griffiths”). Griffiths made it plain to the Commissioner in submissions later made that it would “never agree to the CFMMEU’s proposed agreement, nor will it ever sign the proposed agreement …”.35
[70] The background to how it came to be that the CFMMEU had made an application for the approval of the Agreement which Griffiths would not sign was not fully-developed before us in the appeal or in the proceedings below. What is known of what occurred procedurally after the lodgement of the application for the approval of the Agreement is compendiously set out in paragraphs [2]-[6] of the Decision as follows:
“[2] The application was lodged on 6 September 2018 and was not accompanied by a Form F17 – Employer’s Statutory Declaration in Support of an Application for Approval of an Enterprise Agreement (Form F17), a Notice of Employee Representational Rights (NERR) or a properly signed copy of the Agreement.
[3] The Commission contacted the CFMMEU in relation to the application noting that the relevant documentation had not been provided. On 13 September 2018 the employer’s representative advised the Commission that the employer does not consent to the application, had not been properly consulted by the CFMMEU and does not agree to the terms of the Agreement. Further, that the employer had reason to believe that the Agreement had not been properly put to or accepted by the employees. Subsequently, the CFMMEU advised that it considered the Agreement was properly made, the pre-approval steps were complied with and that the employer has, after the Agreement has been made, determined for reasons unknown to the CFMMEU to not sign the Agreement or participate in the approval process.
[4] The matter was listed for Mention Hearing, by Telephone before me on 20 September 2018.
[5] Prior to the Mention Hearing the employer’s representative filed written submissions with the Commission dated 14 September 2018. The employer submitted that pursuant to s.185(2) of the Act, a bargaining representative may only apply to the Commission for approval of an enterprise agreement if the application is accompanied by a signed copy of the enterprise agreement and that the employer had not signed a copy of the Agreement. On that basis the employer submitted that the application must fail where the prerequisite contained in s.185(2) of the Act has not been satisfied as there is no power or discretion for the Commission to approve an enterprise agreement when s.185(2) has not been satisfied.
[6] The employer also submitted that notwithstanding that the application must fail in the absence of a signed copy of the enterprise agreement, there is also no evidence submitted by the CFMMEU that the employer proposed the enterprise agreement as required by s.181(1) of the Act. The employer submitted that the CFMMEU has no entitlement under s.181(1) of the Act to propose an enterprise agreement to the employer’s employees. On that basis, the employer submits no enterprise agreement has been made.”
[71] Additional background as to Griffiths’ own position in the matter may be gleaned from correspondence of 14 September 2018, 36 in which Griffiths’ solicitors wrote to the Commission. That correspondence read, in part, as to Griffiths’ views in relation to the application for the approval of what Griffiths described as the “alleged enterprise agreement”:
“… We act on behalf of Griffiths Cranes Pty Ltd. Our client holds the business names Botany Cranes and Botany Cranes & Forklift Services. We are instructed to respond to [Commission correspondence dated 10 September 2018] as follows:
1. Application unsustainable in absence of a signed agreement
1.1 You will be aware that, pursuant to section 185(2) of the Act, a bargaining representative may only apply to the Commission for approval of an enterprise agreement if the application is accompanied by a signed copy of the agreement.
1.2 We are instructed that our client has not signed an enterprise agreement with its employees or the Construction, Forestry, Maritime, Mining and Energy Union (“CFMMEU”). You will note that CFMMEU has admitted in its email to you dated 13 September 2018 that no signed enterprise agreement exists.
1.3 In those circumstances, the application must fail where the prerequisite contained in section 185(2) has not been satisfied. There is no power or discretion for the Commission to approve the alleged enterprise agreement when section 185(2) has not been satisfied. Even if CFMMEU were able to satisfy the Commission that an enterprise agreement has been made (which it cannot), the application must still fail in the absence of compliance with section 185(2) of the Act.
1.4 In short, even if CFMMEU’s version of events were to be accepted, the application must inevitably still fail. In those circumstances, the application should be dismissed without putting our client to further cost for a frivolous and entirely unsustainable application.
2. Application unsustainable in absence of an agreement having been made
2.1 You will be aware that:
(a) pursuant to section 185(1) of the Act, a bargaining representative may only apply to the Commission for approval of the agreement if an enterprise agreement has been made;
(b) pursuant to section 182(1) of the Act, an enterprise agreement can only be made if the agreement has been proposed to the employees pursuant to section 181(1) of the Act; and
(c) pursuant to section 181(1) of the Act, an agreement can only be proposed for approval to the employees by the employer (not the CFMMEU).
2.2 We are instructed that our client has not proposed an enterprise agreement in the terms sought by CFMMEU, nor has it reached any agreement on an enterprise agreement with its employees or CFMMEU.
3. Notwithstanding that the application must fail in the absence of a signed copy of the alleged enterprise agreement, there is also no evidence whatsoever submitted on behalf of CFMMEU that our client proposed the enterprise agreement as required by section 181(1) of the Act. It is noted that only drafts of the alleged enterprise agreement have been prepared by CFMMEU, not our client. CFMMEU has no entitlement under section 181(1) of the Act to propose an enterprise agreement to our client’s employees. Clearly, no enterprise agreement has been made.
4. Our client instructs us that it has not been provided with a copy of the alleged enterprise agreement submitted by CFMMEU to the Commission. We would appreciate if we could be provided with a copy. The most recent draft of CFMMEU’s proposed enterprise agreement is entirely defective. For example, CFMMEU’s draft enterprise agreement refers to Griffiths Pty Ltd. There is no such company. Our client is Griffiths Cranes Pty Ltd. This is yet another indicator that CFMMEU is seeking the approval of an alleged enterprise agreement that our client has not proposed, signed or approved. The application is entirely without merit, unsustainable and must fail. It should not be further entertained.”
(Bold and italics in original.)
[72] While the CFMMEU contended for propositions different from those outlined above by Griffiths, what is also known 37 is that the CFMMEU and Griffiths agreed that Griffiths’ objection that the application was not accompanied by a signed copy of the Agreement should be determined as a threshold issue. The CFMMEU acknowledged in the appeal it had “acceded to” this course in the proceedings below. This matter of agreement thereto was also earlier recorded in paragraph [3] of the directions issued by the Commissioner on 20 September 2018. (Although Griffiths had raised objections other than those concerning the absence of a signed copy of the Agreement, the other matters - such as whether the Agreement had been properly “made” - were not the subject of evidence or argument for substantive determination in such respects either in the proceeding below or in the appeal.) Directions concerning the filing and service of materials with respect to the issue concerning the application not being accompanied by a signed copy of the Agreement were issued by the Commissioner on 20 September 2018. Those directions also noted that the parties agreed the matters could be determined on the papers, without the need for a hearing - which was the course that then unfolded.
[73] The Decision of 11 December 2018, among other matters, described and analysed the parties’ competing submissions. The Commissioner relevantly concluded that the application for the approval of the Agreement should be dismissed. The Decision concluded:
“[37] The CFMMEU has not supplied a signed copy of the Agreement in accordance with s.185(5) and the associated Regulation 2.06A, therefore, the application does not meet the requirements of s.185(2) of the Act. The employer in this matter has advised the Agreement will never be signed by the employer. The Application is therefore not a valid application and cannot be approved. It follows that the Agreement does not meet the requirements for approval and for the reasons given I cannot approve the agreement.
[38] The application is therefore dismissed.”
[74] The CFMMEU subsequently identified the following grounds for appeal concerning the dismissal of its application for the approval of the Agreement:
“1. The Commissioner erred in determining that the Commission had no jurisdiction to determine an application for approval of a single enterprise agreement under s 186(1) of the Fair Work Act 2009 (Cth) (FW Act) if an application for approval of the agreement, filed by a bargaining representative for the agreement, is not accompanied by a copy of the agreement signed by the employer.
2. The Commissioner erred in construing the relevant provisions of the [FW Act] as determining that an application for approval of an agreement was invalid if it was not accompanied by a copy of the agreement signed by the employer.
3. The Commissioner erred in his approach to the construction of ss 185-186 of the FW Act by failing to pay regard to the purpose and object of ss 185-186 of the FW Act, the mischief to which s 185(2) was directed and the scheme of agreement making and bargaining effected by Part 2-4 of the FW Act.”
[75] For its part, Griffiths submitted that permission to appeal should not be granted and the appeal should be dismissed. The key planks of matters in such respects are set out in paragraph [17], above, of the majority decision - and so I do not repeat them.
[76] It is apposite to reproduce some of the provisions of the Act, the Fair Work Regulations 2009 (“the Regulations”) and the Fair Work Commission Rules 2013 (“the Rules”) that relevantly arise, directly and indirectly, for consideration in this appeal.
[77] Sections of the Act relevantly include s.181 and s.182. Those sections of the Act describe some of the precursors to lodging an application for the approval of an agreement, and read:
“181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
…”
“182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
…”
[78] As may be seen from the foregoing extracts of s.181 and s.182 of the Act, an employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it. Consequent upon the s.181(1) voting “request” of the employer for approval, the agreement is then “made” when a majority of those employees who cast a valid vote approve the agreement.
[79] Section 185 of the Act deals with what “must” then occur once an enterprise agreement has been “made” within the meaning of s.182(1):
“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement
Application for approval
(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.
(1A) Despite subsection (1), if the agreement is a multi-enterprise agreement that is a greenfields agreement, the application must be made by:
(a) an employer covered by the agreement; or
(b) a relevant employee organisation that is covered by the agreement.
Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) If the agreement is not a greenfields agreement, the application must be made:
(a) within 14 days after the agreement is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.
Signature requirements
(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.
Single-enterprise agreements that are greenfields agreements
(6) This section does not apply to an agreement made under subsection 182(4).”
[80] Thus, it may be seen from s.185(1) of the Act that if an agreement is “made” within the meaning of s.182(1), a bargaining representative for the agreement must apply to the Commission for approval of the agreement. As to when an agreement is “made” (and what must then occur under s.185(1) concerning the making of an application by a bargaining representative, whether for the employer or the employees), see ALDI Foods Pty Limited v Shop Distributive & Allied Employees Association; 38 see also One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union.39 (Different legislative considerations arise in relation to greenfields agreements - not considered in this decision - as also canvassed by the High Court in ALDI and the Full Court of the Federal Court in One Key.)
[81] By rule 8(2) of the Rules, the Form F16 – Application for approval of enterprise agreement (other than a greenfields agreement) is the initiating process for making an application for the approval of an enterprise agreement. Section 185(2) of the Act identifies the material to accompany the Form F16 application. Specifically, by operation of s.185(2), the application must be accompanied by: (a) a signed copy of the agreement; and (b) any declarations that are required by the procedural rules to accompany the application.
[82] Section 185(5) of the Act provides as follows in relation to signature requirements: “The regulations may prescribe requirements relating to the signing of enterprise agreements.” Regulations have been made that prescribe the requirements relating to the signing of enterprise agreements. 40 That is, reg.2.06A(2) of the Regulations specifies what constitutes “a signed copy of the agreement” for the purposes of s.185(2)(a) of the Act as follows:
“2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement
(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.
(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:
(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.”
[83] Turning next to s.185(2)(b) of the Act and its reference to “any declarations that are required by the procedural rules to accompany the application”, rule 24 (Application for approval of an enterprise agreement) of the Rules reads as follows:
“24 Application for approval of an enterprise agreement
Agreements other than greenfields agreements
(1) If an application is made under section 185 of the Act for approval of an enterprise agreement that is not a greenfields agreement, each employer that is to be covered by the agreement must lodge a statutory declaration, in support of the application for approval, by an officer or authorised employee within 14 days after the agreement is made.
Note 1: The statutory declaration must be in the approved form—see subrule 8(2).
Note 2: Rule 40 also requires each employer that will be covered by the enterprise agreement to notify employees that application has been made for approval of the enterprise agreement.
(2) The statutory declaration lodged under subrule (1) must be accompanied by a copy of the notice given by the employer under section 173 of the Act.
Note: The notice under section 173 of the Act is a notice by an employer that will be covered by an enterprise agreement (other than a greenfields agreement) to each employee who will be covered by the agreement and who is employed at the time of notification that the employee has the right to be represented by a bargaining representative.
(3) If the agreement is not a greenfields agreement, each employee organisation that is a bargaining representative and wants to advise the Commission about whether the organisation:
(a) supports approval of the agreement; or
(b) agrees with one or more statements in a declaration made by an employer under subrule (1)
must lodge a statutory declaration by an officer or authorised employee of the organisation before the Commission approves the agreement.
Note 1: The statutory declaration must be in the approved form—see subrule 8(2).
Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement may also use the approved form to give the Commission written notice under section 183 of the Act. Section 183 provides that, after an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement may give the Commission written notice stating that the organisation wants the enterprise agreement to cover it.
(4) If the agreement is not a greenfields agreement, each bargaining representative mentioned in paragraph 176(1)(c) of the Act who has been appointed by one or more employees and wants to advise the Commission about whether the employees:
(a) support approval of the agreement; or
(b) agree with one or more statements in a declaration made by an employer under subrule (1);
must lodge a statutory declaration before the Commission approves the agreement.
Note: The statutory declaration must be in the approved form—see subrule 8(2).
Greenfields agreements—other than single enterprise agreements made under subsection 182(4) of the Act
(5) …
…
General—instruments of appointment of bargaining representatives
(6) If the application is made, or a statutory declaration is lodged, by a bargaining representative appointed by an employer or by an employee, the application or declaration must be accompanied by a copy of the written instrument of appointment of the bargaining representative.”
[84] In the Rules, the only provision relevant to the actual initiating process (the Form F16) for the approval of an enterprise agreement (other than applications for the approval of greenfields agreements) arises in rule 24(6). That is, rule 24(6) provides that if the application is made, or a statutory declaration is lodged, by a bargaining representative appointed by an employer or by an employee, the application or declaration must be accompanied by a copy of the written instrument of appointment of the bargaining representative.
[85] Separately from the matters addressed in rule 24(6) of the Rules concerning the initiating process, each employer that is to be covered by the agreement must lodge a statutory declaration, in support of the application for approval, by an officer or authorised employee within 14 days after the agreement is made: see rule 24(1). 41 By rule 8(2), the approved form for the statutory declaration in such respects is the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement); the Form F17 statutory declaration must be accompanied by a copy of the notice of employee representational rights given by the employer under s.173 of the Act: see rule 24(2).
[86] The statutory declarations referred to in the Rules in rule 24(3) (Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement)) and rule 24(4) (Form F18A – Statutory declaration of employee representative in relation to an application for approval of an enterprise agreement (other than a greenfields agreement)) are, in effect, optional. That is, the lodgement of the Forms F18 and F18A arises only if a relevant bargaining representative wants to advise the Commission about matters concerning support for approval of the enterprise agreement or agreement concerning matters set out in the Form F17: see rules 24(3) and 24(4). (An employee organisation that was a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement may also choose to use the Form F18 as a means to give the Commission written notice under s.183 of the Act stating that the organisation wants the enterprise agreement to cover it.)
Authorities
[87] In Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) 42 (“Peabody Moorvale”), a Full Bench of the Commission had before it two principal issues for determination, one of which was described as “the Regulation 2.06A point” (the other principal issue considered in Peabody Moorvale, concerning notices of employee representational rights, is not relevant to the appeal before us). The point in issue in such respects was whether reg.2.06A(2)(b)(i) of the Regulations requires that an application for the approval of an enterprise agreement be accompanied by a signed copy of the agreement which includes the residential address of each person who signs the agreement (as opposed to, for example, the workplace address of a signatory). The Peabody Moorvale Full Bench decision addressed the matter in this way:
“[87] Subsection 185(2)(a) provides that an application for the approval for an enterprise agreement must be accompanied by ‘a signed copy of the agreement’ and s.185(5) provides that the Regulations may prescribe requirements relating to the signing of enterprise agreements. Regulation 2.06A is made pursuant to s.185(5) and relevantly provides:
“(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.”
[88] The operation of s.185(2)(a) of the Act and reg.2.06A of the Regulations as to what constitutes a signed agreement is, thereby, uncontroversial. The Full Bench in Peabody Moorvale, comprising a five-member bench, plainly set out the operative provisions in paragraph [87] of its decision.
[89] The issue in contention that was determined by the Peabody Moorvale Full Bench in relation to “the Regulation 2.06A point” was whether the word “address” in reg.2.06A(2)(b)(i) of the Regulations means a signatory’s residential address or whether it is sufficient if a signatory’s work address is supplied (albeit the transcript 43 of the Full Bench proceedings records that argument was also put concerning s.586 of the Act). The Construction, Forestry, Mining and Energy Union (“CFMEU” - as the appellant union in this appeal was known in one of its earlier forms) contended before the Peabody Moorvale Full Bench that non-compliance with reg.2.06A(2)(b)(i) goes to invalidity; if the persons who sign the agreement do not set out their residential address the application to approve the agreement is invalid. While the Full Bench rejected the CFMEU’s contention that the word “address” in reg.2.06A(2)(b)(i) means “residential address”, nothing detracts from the plain statement in Peabody Moorvale concerning s.185(2) of the Act and reg.2.06A(2) of the Regulations.
[90] More recently, in The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd 44 (“Oji”), a Full Bench of the Commission considered an appeal concerning the approval of an enterprise agreement where the member at first instance had approved an agreement with the wage rates redacted in the published version of that agreement. In the course of traversing the redaction issue, the Oji Full Bench said the following:
“[63] The second proposition advanced is that s.594(1)(c) allows orders to be made in relation to ‘matters contained in documents lodged with the FWC’; that ‘wage rates’ are ‘matters’; and that an enterprise agreement is a ‘document’ that is ‘lodged’ with the Commission. On this basis, it is submitted that s.594(1)(c) empowers the Commission to make an order redacting the wage rates in an enterprise agreement.
[64] In our view the argument put is misconceived. The enterprise agreement document that is required to be lodged with the Commission under the [Fair Work Act 2009], the Fair Work Regulations 2009 and the Fair Work Commission Rules 2013 (Rules) is the ‘signed copy of the agreement’ referred to in s.185(2). But for the reasons which follow, we are not persuaded that the agreement that must be published under s.601(4)(b) is that signed copy.
[65] Section 601(4)(b) is directed at the publication of the enterprise agreement that has been approved by the Commission under Part 2-4. The enterprise agreement which is approved, and which must be published, is not the document lodged with the Commission (ie the signed copy of the agreement referred to in s.185(2)) but rather is the enterprise agreement ‘as made’.
[66] An enterprise agreement is made when it is approved by a vote of employees (ss.182(1) and (2)). After an ‘enterprise agreement is made’, a bargaining representative must apply to the Commission for ‘approval of the agreement’ (s.185(1)). The application must be accompanied by a ‘signed copy of the agreement’ and any declarations required by the Rules (s.185(2)).
[67] The [Explanatory Memorandum] explains the rationale for requiring a ‘signed copy of the agreement’ to be lodged:
‘761. Subclause 185(1) requires a bargaining representative to apply for FWA approval of an enterprise agreement that has been made. This can be the employer, a bargaining representative for an employer, or a bargaining representative for an employee.
762. Subclause 185(2) sets out the material that must accompany the application for FWA approval. The bargaining representative must provide FWA with a signed copy of the agreement and any other declarations required by the procedural rules of FWA. The requirement for a bargaining representative to provide FWA with a signed copy of the agreement is intended to ensure that the agreement that FWA considers for approval is the one that the parties have made. …
763. The powers of FWA enable it to inform itself in relation to the application in such manner as it considers appropriate (clause 590), including contacting the employer or employers, their employees, and bargaining representatives.’ [emphasis added]
[68] It follows from this that if an enterprise agreement as made does not include the details of the signatories to the agreement, the Commission is not compelled by s.601(4)(b) to publish those details (although it may choose to do so). Further, in the event the signed copy of the agreement lodged with the Commission is to be published, the details of the signatories may be redacted and could also be the subject of an order under s.594(1)(c).”
(Underlining and “[emphasis added]” in original.)
[91] Thus, the Oji Full Bench articulated - including by reference to matters explained in the Explanatory Memorandum - that the application for the approval of an agreement must be accompanied by a signed copy of the agreement. Here, it may be noted, there was disagreement between the CFMMEU and Griffiths about whether the Agreement was one that had been made or properly “made” within the meaning of the legislation - but this matter was not the subject of consideration or determination, given the particular compass of the directions issued by the Commissioner.
[92] Apart from the consideration of the requirements of s.185(2) of the Act, the Oji Full Bench decision is also instructive as to the use of mandatory language in the Act, including at paragraphs [35]-[56]. It has often been observed 45 that the language which has actually been employed is the surest guide to legislative intention. As to the consideration of mandatory language in relation to provisions of the Act with respect to enterprise agreements, see also, for example, Peabody Moorvale46 (to which reference was separately earlier made in this decision, albeit in relation to the “Regulation 2.06A point”), Transport Workers’ Union of Australia v Hunter Operations Pty Ltd47 and the majority decision in Uniline Australia Limited.48 For a very recent, comprehensive consideration of authorities concerning such matters, see the judgment of the Full Court of the Federal Court in ALDI Foods Pty Limited as General Partner of ALDI Stores v Shop, Distributive and Allied Employees’ Association.49 I am bound to observe that, from my reading of aspects of these cases, much of the argument that was advanced by the CFMMEU in this appeal covered argument similar to argument that was unsuccessfully advanced in relation to provisions of the Act wherein similarly mandatory language has been used concerning applications for the approval of enterprise agreements (by way of example, in relation to matters concerning the timing of the provision of and/or the content of notices of employee representational rights). Some such matters have been among those that have been legislatively addressed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018. The amending legislation provides a mechanism for the Commission, in some cases, to approve enterprise agreements despite minor procedural or technical errors of the type contemplated within that amending legislation (see also Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318). The amending legislation does not extend to s.185(2)(a) of the Act or reg.2.06A of the Regulations.
[93] In Maritime Union of Australia v SMIT Lamnalco (Australia) Pty Ltd 50 (“SMIT Lamnalco”) the appellant union and the respondent employer filed a joint document titled “Minutes of Consent Order”. The parties requested that the Full Bench grant permission to appeal on the basis of certain grounds of appeal filed by the appellant union, uphold the appeal, and quash the decision approving the particular enterprise agreement. The SMIT Lamnalco Full Bench was satisfied that those grounds of appeal properly identified appealable error and, in consequence, granted permission to appeal, allowed the appeal, quashed the approval decision and dismissed the application for the approval of the agreement. The appeal grounds in question upon which the SMIT Lamnalco Full Bench moved in upholding the appeal and dismissing the application for the approval of the agreement were extracted in the appeal decision within paragraph [2]. They read:
“1. Section 185(2) of the FW Act is expressed in mandatory terms. It requires that “the application must be accompanied by:
(a) a signed copy of the agreement and
(b) any declarations that are required by the procedural rules to accompany the application.”
2. Section 185(5) provides that the regulations may prescribe requirements relating to the signing of agreements.
3. Section 186(1) of the FW Act empowers approval of an enterprise agreement only if an application for the approval of an enterprise agreement is made under section 185. An application “under section 185” must be one made in accordance with it.
4. Section 585 of the FW Act requires that “An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind”.
5. Rule 8(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides:
If the President approves a form for a particular purpose, then subject to these Rules, the approved form must be used for the purpose.
6. Form F16 is the approved form for an application under s 185 of the FW Act.
7. Regulation 2.06A of the Fair Work Regulations 2009 (FW Regs) provides:
[Regulation 2.06A reproduced in full.]
8. The case file shows that application that was filed by the respondent and was considered by the Deputy President:
(a) was missing page 4 which asked the respondent if there were any union or employee bargaining representatives involved in the agreement making process; and
(b) although it might be implied from the fact that sections 5.2 and 5.3 were filled in but redacted that the answer to 5.1 was yes, sections 5.2 and 5.3 were redacted.
9. There is no suggestion on the case file that these omissions and/or redactions were remedied before the Deputy President approved the agreement by the supply of the detail required by Form 16. As a result of omitting and/or redacting these details, the application that was filed and considered by the Deputy President was not in the approved form of Form 16 and failed to comply with rule 8(2) of the FWC Rules. Therefore the application was not made as required under ss 185 and 585 of the FW Act and the Deputy President should not have approved the agreement.
10. The case file shows that the agreement document was filed by the respondent:
(a) without the names, signatures, and addresses of any employee bargaining representatives on the signature page; and
(b) without any explanation of any of the authority of any person on the signature page to sign the Agreement.
11. These details were required to be included in the filed agreement by Regulation 2.06A(2) of the FW Regs. Further, without inclusion of the details of the employee representative(s) required by Regulation 2.06A(2), the Deputy President could not have been satisfied that the requirement of Regulation 2.06A(3) of the FW Regs had been met.
12. It appears that at some time subsequent to the agreement document being filed, the Deputy President was in receipt of a signature page with the name, signature and address of an employee bargaining representative all redacted. However, there is no suggestion on the case file that the omissions in the filed agreement document were otherwise changed before the Deputy President approved the Agreement.
13. In any event the redactions and the lack of any explanation of authority meant that the Deputy President could not have been satisfied that the requirements of s182(5)(a) [sic; s 185(2)(a)] of the FW Act and Regulation 2.06A of the FW Regs had been met and should not have approved the Agreement.
14. As a result of the above omissions and/or redactions in the application and the filed agreement, the approval by the Deputy President of the agreement was not in accordance with s.186(1) because he did not have before him an application made in accordance with s.185.”
[94] Before the Full Court of the Federal Court in Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd 51 (“Kaizen”) was one of the cases in the oft-cited series of cases arising from the approval under the Act of certain enterprise agreements where, among other matters, the question of the signatory authority subsequently was put in issue. Reference was made to Kaizen in the materials before us, but principally as the judgment referred to the requirement that a bargaining representative for an agreement must apply to the Commission for approval of an enterprise agreement that is “made” (within the meaning of s.182(1) of the Act).
[95] The Full Court (per Buchanan and Jagot JJ, with Greenwood J separately agreeing at paragraph 67 with their reasoning and the orders they proposed) also addressed matters concerning the making of any such application:
“75. If an agreement is made, an application for approval must be made. The application must be accompanied by certain stipulated material. …”
[96] The Kaizen judgment then set out extracts of s.185(1), (2)(a) and (5) of the Act (together with the inclusion of the statutory note which concerns 185(2)(a) of the Act), and reg.2.06A(2) of the Regulations. I do not reproduce those extracts of the Act and the Regulations from Kaizen, as the relevant provisions are already set out in full earlier in this decision.
[97] Under a paragraph heading titled “Matters for specific attention”, the Full Court in Kaizen said:
“97 In our view, it is necessary at this point to make a distinction (as did the primary judge) between whether Mr Subramanian’s conduct made a legally effective contribution to the enterprise agreements being made and whether he later supplied elements necessary for valid approval of the enterprise agreements.
98 In this latter connection a further distinction may need to be borne in mind. On 1 August 2012, Mr Subramanian signed the enterprise agreements, purportedly on behalf of each of the first to third respondents. An agreement signed by an employer is a statutory requirement for an application for approval. On 3 August 2012 Mr Subramanian also signed “Employer’s Declarations” verifying the steps taken to have the enterprise agreements made. That was a procedural step. That procedural requirement was formally waived by the Deputy President in his decision on 20 December 2012 approving the enterprise agreements for a second time.
99 The procedural issue requires no further attention. However, attention will be required to the requirement for an employer signature to an enterprise agreement as a condition for a valid application for approval.”
(Italics in original; underlining added.)
[98] The Kaizen judgment later continued:
“112 The Deputy President accepted Mr Subramanian’s signature as satisfaction of the requirements imposed by s 185(2)(a) of the FW Act and reg 2.06A(2) (each of which we set out earlier). Those are each requirements for a valid application.”
(Underlining added.)
[99] Thus, the Full Court of the Federal Court in Kaizen has unambiguously pronounced upon the matter of an agreement signed by an employer: (a) being “a statutory requirement for an application for approval”; and (b) being “a condition for a valid application for approval”. Further, the Court has also similarly pronounced that the requirements imposed by s.185(2)(a) of the Act and reg.2.06A of the Regulations “are each requirements for a valid application”. It may be noted that, on 7 August 2015, the High Court refused to give special leave to appeal the Kaizen judgment.
[100] Drawing from what is set out in the foregoing paragraphs, the requirements of s.185(2) of the Act and meeting the requirements of reg.2.06A of the Regulations involve strict compliance, given the mandatory language in the Act and the Regulations. That is, s.185(2)(a) of the Act specifies that the application for the approval of the agreement “must be accompanied by a signed copy of the agreement”. Section 185(5) of the Act identifies that the Regulations may “prescribe” requirements relating to the signing of enterprise agreements. In turn, reg.2.06A(1) of the Regulations identifies that, for s.185(5) of the Act, the regulation “prescribes” the requirements for the signing of an enterprise agreement. Regulation 2.06A(2) stipulates that, for s.185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy “only if”:
• it is signed by the employer covered by the agreement (reg.2.06A(2)(a)(i)); and
• it is signed by at least one representative of the employees covered by the agreement (reg.2.06A(2)(a)(ii)); and
• it includes the full name and address of each person who signs the agreement (reg.2.06A(2)(b)(i)); and
• it includes an explanation of the person’s authority to sign the agreement (reg.2.06A(2)(b)(ii)).
[101] There was no appealable error in the Commissioner concluding in the Decision to dismiss the application for the approval of the Agreement on the basis the application “is not a valid application” and that the Agreement cannot be approved. In that regard, the Commissioner adopted an approach similar to that in Re Malteurop Australia Pty Ltd 52 (“Malteurop”) (being, I note albeit only in passing - for nothing of jurisdictional relevance turns on it - the only decision that is individually highlighted in the Commission’s Enterprise Agreement Benchbook concerning the requirements of reg.2.06A). In Malteurop, an application had been made for the approval of an enterprise agreement. The relevant union which had been a bargaining representative lodged a Form F18, advising, among other matters, it would not be signing the agreement53 - albeit separately advising it did not oppose the approval of the agreement. After setting out s.185 of the Act and reg.2.06A of the Regulations, the Malteurop decision concluded:
“[6] The signed agreement attached to the application did not meet the requirements of s.185(2)(a) of the Act as it did not include the full name and address of each person who signed the agreement nor an explanation of some of the signatories authority to sign the agreement as required by Regulation 2.06A.
[7] As the requirements of s.185(2)(b) have not been complied with the application is not a valid application. The application is therefore dismissed.”
[102] Both the Decision and Malteurop speak to the correct position of there not being a “valid application” in relation to the requirements of s.185(2) of the Act and reg.2.06A, as do a range of other Commission decisions to which Griffiths referred in its submissions. The matter of a valid application is put beyond further issue by what was said by the Full Court of the Federal Court in Kaizen. The Full Court has spoken on the matter, that is, an application for the approval of an agreement must be accompanied by certain stipulated material, and the requirements imposed by s 185(2)(a) of the Act and reg.2.06A “are each requirements for a valid application”. While I have considered the principles discussed in authorities such Project Blue Sky v Australian Broadcasting Authority, 54 the unequivocal, prescriptive statutory language of the Act and the Regulations, coupled with the judicial consideration in Kaizen of such requirements, does not allow for a conclusion other than that the Commissioner was correct in concluding that he did not have before him a valid application for the approval of the Agreement.
Other legislative provisions
[103] Other legislative provisions were addressed in the proceedings before the Commissioner and in relation to the appeal, namely s.585 (Applications in accordance with the procedural rules), s.586 (Correcting and amending applications and documents etc) and s.587 (Dismissing applications) of the Act. Those provisions read as follows:
“585 Applications in accordance with procedural rules
An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.
Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).
Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.
586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) …
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[104] In the Decision, the Commissioner gave consideration to the provisions of s.586(a) of the Act by which the Commission may allow a correction or amendment of any application, or other document relating to a matter before the Commission, on any terms that it considers appropriate. The Decision read, in part (references not reproduced):
“[30] The parties referred me to the decision of the Full Bench in Sustaining Works. In that matter a separate issue was identified which was not raised by the unions in their notice of appeal but the Full Bench considered it was necessary to deal with. The issue was that the copy of the Agreement which accompanied the application for approval was not signed in accordance with Regulation 2.06A(2), because the two persons who signed on behalf of the employees did not provide their full names and the addresses given were not considered proper addresses.
[31] Relevantly, in Sustaining Works the Full Bench said:
“[30] Section 185(2) is expressed in mandatory terms. Section 186(1) empowers approval of an enterprise agreement only if “an application for the approval of an enterprise agreement is made under section 185 …”. We consider that an application “under” s.185 must be one made in accordance with it. Further, s.585 requires that “An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind”. Accordingly it is not open to the Commission to simply ignore a failure to comply with the signature requirements….
[31] However, because the signature issue was never raised before the Commissioner, there was never any opportunity for the exercise of the power in s.586 to deal with the problem. As a result the Commissioner’s approval of the Agreement was arguably not in accordance with s.186(1) because he did not have before him an application made in accordance with s.185.”
[32] The Full Bench found it was appropriate to grant permission to appeal in the public interest in order to ensure that the mandatory provisions of the Act they identified were complied with. Pursuant to s.586(a), the Full Bench allowed the employer to file a copy of the Agreement which was “signed in accordance with the requirements of reg.2.06A(2) within 14 days” of the date of the decision.
[33] The employer submits and I agree that the decision in Sustaining Works does not support the CFMMEU’s submission that it is not a condition precedent that an application be accompanied by a signed copy of the agreement. Although the Full Bench in Sustaining Works did not definitively determine the consequence of an application not being accompanied by signed copy of the agreement, the Full Bench granted permission to appeal and pursuant to s.586(a), allowed the Applicant a period of time “to file a copy of the Agreement which is signed in accordance with the requirements of Regulation 2.06A(2). In doing so, the Full Bench made clear that this was to ensure the mandatory provisions of the Act were complied with.
[34] The CFMMEU submit the mandatory nature of s.185(1), that a bargaining representative must apply to the Commission for approval of an agreement if it is made and further, the preposition “under” in s.186(1) instead of, for example “in accordance with” and the reference to an “application” and the fact there is no reference to materials accompanying an application, point towards it not being a condition precedent to exercise the approval power under s.186(1) that an application be accompanied by a signed agreement and/or accompanied by the declarations required. With respect, I do not agree with this submission. The employer submits that if the CFMMEU’s interpretation that the requirements prescribed by s.185(2) of the Act and 2.06A of the Regulations, including the signing of the agreement, are a not condition precedent then those sections would be entirely futile. I agree with the Full Bench in Sustaining Works that an application under s.185 must be one made in accordance with it and it is not open to the Commission to ignore a failure to comply with the signature requirements. The word “must” in s.185(2) is language in mandatory form. It follows that an application under s.185 not accompanied by a signed copy of the Agreement pursuant to s.185(2)(a) of the Act, is not an application made in accordance with it and the application to approve the agreement is invalid.
[35] I agree with the CFMMEU that s.586 of the Act allows the Commission to amend applications and accept amended or revised signature pages after lodgement, which do not meet the requirements of Regulation 2.06A. However, in this matter the employer has indicated that it will never sign the Agreement. Therefore, it is apparent that providing an opportunity to the employer to provide a signed copy of the Agreement is futile.”
Section 585 – Application in accordance with procedural rules
[105] As to the specification in s.585 of the Act that an application to the Commission must be in accordance with the “procedural rules (if any) relating to applications of that kind”, the requirements of the statute at s.185(2)(a) and the associated prescription in reg.2.06A(2) as to what constitutes a signed agreement are not “procedural rules” relating to an application for the approval of an enterprise agreement. 55 So much is made clear by the delineation within s.185(2) of the Act such that, by s.185(2)(a), the application must be accompanied by a signed copy of the agreement; and, separately by s.185(2)(b), the application must also be accompanied by any declarations that are required by the procedural rules to accompany the application. Section 12 (Dictionary) of the Act defines “procedural rules” as meaning the procedural rules of the Commission made under s.609 of the Act:
“609 Procedural rules
(1) After consulting the other FWC Members, the President may, by legislative instrument, make procedural rules in relation to:
(a) the practice and procedure to be followed by the FWC; or
(b) the conduct of business in relation to matters allowed or required to be dealt with by the FWC.
(2) Without limiting subsection (1), the procedural rules may provide for the following:
(a) the requirements for making an application to the FWC; …”
[106] The “procedural rules (if any)” to which s.585 of the Act refers, relevant to an application for the approval of an enterprise agreement, are extracted earlier in this decision, namely, rule 24 of the Rules. As noted earlier, the only provision relevant to the Form F16 initiating application for the approval of an enterprise agreement is rule 24(6) of the Rules - which provides that if the application is made, or a statutory declaration is lodged, by a bargaining representative appointed by an employer or by an employee, the application or declaration must be accompanied by a copy of the written instrument of appointment of the bargaining representative. Separately from the Form F16 initiating application, and as has been noted earlier, the Rules otherwise address matters such as the lodging within 14 days after the agreement is made of the Form F17 employer’s statutory declaration in support of an application for the approval of an enterprise agreement. An agreement signed by an employer is a statutory requirement for an application for approval (Kaizen at paragraph 98); it is not a matter dealt with by way of procedural rules under the Rules made pursuant to s.609 of the Act.
[107] Section 585 of the Act provides that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind. In passing, it may be observed that a statutory note immediately following s.585 reminds that certain provisions might impose additional “requirements” in relation to particular types of applications and, it may be also observed, Note 1 specifically examples s.185(2) of the Act - being the requirement that the application must be accompanied by a signed copy of the agreement. That is, the notes immediately below s.585 of the Act read:
“Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).
Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.”
[108] In turn, there is a note within reg.2.06A of the Regulations, immediately below reg.2.06A(2) as to the prescribed requirements for the signing of an enterprise agreement, which reminds:
“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.”
Section 586 – Correcting and amending applications and documents etc
[109] An application for the approval of an enterprise agreement that is not a valid application for want of compliance with the statutory requirement in s.185(2)(a) of the Act cannot be cured, as it were, by - in the exercise of discretion - allowing, pursuant to s.586 of the Act, a correction or amendment of any application, or other document (appositely, the signature page(s) of the copy of the agreement accompanying the application for the approval of the agreement). Either the application before the Commission is a valid application or it is not - and, it may be re-emphasised, the Full Court of the Federal Court in Kaizen has held that “the application must be accompanied by certain stipulated material” and “the requirements imposed by s 185(2)(a) of the FW Act and reg 2.06A(2) … are each requirements for a valid application.”
[110] By s.586(b) of the Act, the Commission may waive an irregularity in the form or manner in which an application is made to the Commission. The CFMMEU relied on s.586(b) in the appeal concerning the Decision, contending that this provision was not considered by the Commissioner in connection with the dismissal of the application for the approval of the Agreement. The submissions concerning s.586(b) of the Act are without substance. Given the stipulation in s.185(2) of the Act, the absence of a signed copy of the Agreement accompanying the application is not an irregularity in the form or manner in which the application is made to the Commission. Kaizen says the “requirements imposed” by s.185(2)(a) of the Act and reg.2.06A are each requirements for a “valid application”. Moreover, SMIT Lamnalco indicates that the approval of an Agreement that was not reg.2.06A-compliant is successfully challengeable on appeal.
[111] Absent the making of an application conformably in accordance with the requirements of s.185(2) of the Act and reg.2.06A of the Regulations, what otherwise might be sought to be corrected under s.586 of the Act is not a (valid) application for the approval of an enterprise agreement whereby the signature page(s) properly would be susceptible of correction or amendment pursuant to s.586(a). To similar import, s.586(b) of the Act would not extend to purporting to treat non-compliance with the requirements of s.185(2) of the Act and reg.2.06A of the Regulations as an irregularity in the form or manner in which an application is made to the Commission and, for instance, capable of waiver pursuant to s.586(b) of the Act with a view to approval of an agreement.
The dismissal of the application for the approval of the Agreement
[112] In correspondence/submission of 14 September 2018, Griffiths’ solicitors wrote that “no signed enterprise agreement exists” and, in those circumstances, the application must fail where the prerequisite contained in s.185(2) of the Act had not been satisfied; and there was no power or discretion for the Commission to approve “the alleged enterprise agreement” when s.185(2) has not been satisfied. Griffiths’ solicitors also wrote that: “In those circumstances, the application should be dismissed without putting our client to further cost for a frivolous and entirely unsustainable application.”
[113] The directions subsequently issued by the Commissioner on 20 September 2018 acknowledged at paragraph [4] what already had been put for Griffiths on 14 September 2018 (relevantly including, for the purposes of what arose in the appeal), that the application should be dismissed considering the absence of a signed copy of the Agreement. That is, the directions read in part:
“[3] Griffith [sic] Cranes has raised jurisdictional objections to the approval of the enterprise agreement. At the Mention Hearing, it was agreed that the objection that the application is not accompanied by a signed copy of the enterprise agreement is a threshold issue to be determined.
[4] The employer’s representative has already provided written submissions dated 14 September 2018 on that point and Griffith Cranes does not seek to provide further submissions. Further to the Mention hearing before me today, I direct as follows:
1. The CFMMEU is directed to file with the Fair Work Commission and serve on Griffith [sic] Cranes any written submissions in reply to Griffith Cranes’ 14 September 2018 submissions by 5:00pm Thursday, 27 September 2018.
2. Griffith Cranes is to file with the Fair Work Commission and serve on the CFMMEU any written submissions in reply or advise if it does not seek to exercise a right of reply by 5:00pm Thursday, 4 October 2018.
[5] The parties agree that the matter can be determined on the papers without the need for a hearing.
[6] Parties have liberty to apply generally.”
(Bold in original; underlining added.)
[114] The CFMMEU contended for a construction of the statutory scheme different from that posited by Griffiths on 14 September 2018, as developed in its submissions that were filed and served pursuant to the directions of 20 September 2018. The CFMMEU submitted that Griffiths’ objection to the Commission dealing with the application should be dismissed and the application for the approval of the Agreement should be programmed for hearing on the merits (contrary to what had been put by Griffiths that the application should be dismissed as a result of s.185(2)(a) jurisdictional issues). In strongly-worded reply submissions dated 4 October 2018 (which at times went considerably beyond contentions going to the jurisdictional objection), Griffiths again sought that the application for the approval of the Agreement should be dismissed.
[115] Although not the component of any direction arising from the directions issued by the Commissioner on 20 September 2018, the CFMMEU filed and served a further round of submissions which were in reply to Griffiths’ submissions of 4 October 2018. Those additional CFMMEU submissions addressed, among other matters, that following from the approach in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Manufacturing Workers’ Union v Sustaining Works Pty Limited 56 the application for the approval of the Agreement was an application capable of being considered and, ultimately, approved by the Commission; and any failure to comply with the requirements of s.185(2) of the Act “can be addressed by resort to s.586” of the Act. The CFMMEU’s reply submissions contended that the application should be permitted to proceed and that it should be allowed to adduce evidence that Griffiths agreed to bargain, undertook pre-approval steps and put the Agreement to a vote in accordance with s.181(1) of the Act. In turn, Griffiths also filed further written submissions dated 9 October 2018 - again with such filing being outside the directions originally given by the Commissioner.
[116] Despite the submissions for the CFMMEU in the appeal that the Commissioner should not have proceeded to dismiss the application for the approval of the Agreement, and/or that the Commissioner in effect misdirected himself in relation to what was before him for determination, the Commissioner squarely had before him submissions advanced for Griffiths that the application should be dismissed for reason that the application was not accompanied by a signed copy of the Agreement. The submissions referred to Kaizen and, in turn, that judgment refers, I again note, to the “requirements imposed” by s.185(2)(a) of the Act and reg.2.06A as being each requirements for a “valid application”. Particularly in the wake of what was said in Kaizen, it is elusive to me how it might be considered that either of the limbs in (a) or (b) of s.586 of the Act properly could be engaged in relation to the Agreement. In this regard, I note that Sustaining Works - which post-dated Kaizen 57- contains no reference to the Federal Court authority albeit Kaizen speaks to the matters related to a “valid application” considered in the context of s.185(2) of the Act and reg.2.06A.
[117] If I am wrong about the import of s.185(2), reg.2.06A and Kaizen, on what was before the Commissioner (and before us in the appeal), Griffiths has not and “never” will sign the Agreement. In consequence, there will not be any Sustaining Works-type signatory “correction or amendment” pursuant to s.586(a) of the Act even if it were accepted that s.586(a) properly may be used for such purpose.
[118] The appeal submissions for the CFMMEU indicated 58 that the Commission member who would re-hear the application for the approval of the Agreement, following the appeal, would be asked to approve the Agreement with only one signatory under the auspices of waiving, pursuant to s.586(b) of the Act, that the Agreement had only one (CFMMEU) signatory. That is, in oral submissions in the appeal, the CFMMEU submitted that s.586(b) of the Act could be enlivened in the exercise of discretion with the result the Agreement could be approved (i.e. with only one signatory). I think it is a surprising proposition that it might be contended an application should be allowed to proceed without an agreement being (at least) co-signed, which is apparently what the CFMMEU wishes to have the Commissioner consider on remit following the appeal, i.e., that the Commissioner should consider waiving the requirement for a properly signed agreement (that is, signed for Griffiths) with a view to approval of the Agreement.
[119] The Commissioner determined to dismiss the CFMMEU’s application for the approval of the Agreement, acceding to the submissions thereto by Griffiths and based on his consideration of what was before him. In that respect, the Commissioner was correct to conclude that he could not approve the Agreement. Additionally, while the issue was principally a jurisdictional question, as a factual overlay Griffiths had informed the Commissioner the Agreement will never be signed by the employer. Apart from the Commissioner having before him an application that was not a valid application, the submissions indicated Griffiths would never, in any event, sign the Agreement.
[120] In my respectful view, and putting aside all other matters, there is no utility in the appeal having as its outcome that the application for the approval of the Agreement should be remitted to the Commissioner for further consideration of the availability of s.586(b) of the Act - including with a view to approving the Agreement with a singular CFMMEU signatory. If the Commission were to purport to dispense with the statutory requirement for a reg.2.06A-compliant agreement and approve the Agreement on the basis of a s.586(b)-related waiving of an irregularity in the form or manner in which an application is made to the Commission, SMIT Lamnalco indicates that any such purported approval is challengeable, and successfully so.
[121] Finally, I should separately note, for completeness, that the signatory details for the CFMMEU are not themselves reg.2.06A-compliant. Unlike the situation under earlier industrial statutes, under the Act unions (employee organisations) such as the CFMMEU, do not sign enterprise agreements in their own right, as it were.
[122] In that regard, the Agreement as filed with the Commission identified on the signature page that an official of the CFMMEU signed the Agreement “FOR THE UNION”. The authority of an employee organisation in relation to enterprise agreement-related matters typically derives from employee bargaining representative status - and reg.2.06A(2)(b)(ii) requires “an explanation of the person’s authority to sign the agreement”.
[123] There are countless examples of enterprise agreements which have been properly executed by a union in a way that is reg.2.06A-compliant. For example, in the approval decision concerning an application for the approval of the Civil Construction Agreement 2018-2022, 59 the union signatory information on the signatories’ page records an explanation of the person’s authority to sign that particular agreement as follows:
“I am authorised by Australian Workers’ Union (Victorian Division) to sign this Agreement as a bargaining representative on behalf of the Employees covered by the Agreement.”
Conclusion
[124] The orders I would propose, in view of the diversity of decisions (a number of which were referred to below and in the appeal), are that permission to appeal be granted and the appeal be dismissed.
[125] I otherwise, respectfully, apprehend no utility in remitting the application for the approval of the Agreement to the Commissioner for further consideration of s.586(b) of the Act.
DEPUTY PRESIDENT
Appearances:
S Crawshaw SC for the Construction, Forestry, Maritime, Mining and Energy Union.
P Wallis of Counsel for Griffiths Cranes Pty Ltd.
Hearing details:
2019.
Sydney:
January 24.
Printed by authority of the Commonwealth Government Printer
<PR705899>
2 Appeal Book at p.26 at clause 3
3 Ibid at pp.124 – 125
4 Ibid at pp.127-129
5 [2018] FWC 6708 at [29]
7 [2018] FWC 6708 at [34]
8 Ibid at [35]
9 Ibid at [36] – [38]
10 [2018] FWC 6708 at [34]
11 Ibid
12 Ibid at [35]
13 (1986) 7 NSWLR 560 at 567
14 Ibid at 567
15 (1998) 194 CLR 355
16 Ibid at 388 - 390
17 R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 244 (per Dixon J)
18 (1998) 194 CLR 355 at 381 [69]
19 Ibid at 381-382 [70]
20 As in force on 25 June 2009; See s.40A of the Fair Work Act 2009 (Cth)
21 Fair Work Act 2009 (Cth) at s.3(f)
22 Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23, (2014) 228 FCR 225 at 251 at [133] (per Buchanan and Jagot JJ)
23 We refer to the Explanatory Memorandum as confirming the ordinary meaning of the text of s.185(1) of the Act taking into account its context and purpose, consistently with s.15AB of the Acts Interpretation Act 1901 as in force on 25 June 2009; see s.40A of the Fair Work Act 2009 (Cth)
24 Section 185(3)
25 Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23, (2014) 228 FCR 225
26 [2018] FWC 6708 at [25]
27 Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23, (2014) 228 FCR 225 at [112]
29 Appeal Book at pp.132 – 137
30 Ibid at pp.138 – 144
31 Ibid at pp.145 – 149
32 Ibid at p.149 at [14]
33 Construction, Forestry, Maritime, Mining and Energy Union [2018] FWC 6708 (re application for approval of the Griffiths Pty Ltd t-as Botany Cranes & Forklift Services/CFMEU Collective Agreement 2018).
34 The text of the Agreement misidentified the company name in that it named the employer entity as “Griffiths Pty Ltd t-as Botany Cranes & Forklift Services”.
35 Separately, the application for the approval of the Agreement was not accompanied by a Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement. Note, however, there is no requirement in the Act for an initiating application for the approval of an agreement to be accompanied by a Form F17: see rule 24(1) of the Fair Work Commission Rules (2013) concerning the lodgement of the Form F17 and rule 24(2) concerning the notice of employee representational rights.
36 The correspondence, in the nature of submissions, is referred to in the Decision at paragraph [5].
37 Decision at paragraph [7].
38 ALDI Foods Pty Limited v Shop Distributive & Allied Employees Association [2017] HCA 53 from [41] (per Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ; Gaegler J separately agreeing with the orders and adding an additional observation).
39 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 from [22] (per Bromberg, Katzmann and O’Callaghan JJ).
40 See Fair Work Amendment Regulations 2009 (No. 3), which amended the Fair Work Regulations 2009 to effect, among other amendments, reg.2.06A (Bargaining representative must apply for FWC approval of an enterprise agreement - requirements for signing agreement).
41 Griffiths has indicated, in effect, it will not lodge a Form F17 employer’s declaration in support of the application for the approval of the Agreement (separately from its submissions that it will not sign the Agreement).
42 Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042 (Ross J, Hatcher VP, Asbury DP, Gostencnik DP, Simpson C - 2 April 2014).
43 Peabody Moorvale transcript of proceedings - 27 February 2014.
44 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501 (Ross J, Saunders DP, Lee C - 20 December 2018).
45 See, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 42 (per French CJ and Hayne, Heydon, Crennan and Kiefel JJ) where the following was said: “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
46 Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042.
47 Transport Workers’ Union of Australia v Hunter Operations Pty Ltd [2014] FWC 7469 (Hatcher VP - 30 October 2014).
48 Uniline Australia Limited [2016] FWCFB 4969 (Gostencnik DP and Riordan C; Watson VP dissenting - 25 August 2016).
49 ALDI Foods Pty Limited as General Partner of ALDI Stores v Shop, Distributive and Allied Employees’ Association [2019] FCAFC 35 (Flick, Rangiah and Bromwich JJ - 1 March 2019).
50 Maritime Union of Australia v SMIT Lamnalco (Australia) Pty Ltd [2016] FWCFB 1145 (Hatcher VP, Asbury DP, McKenna C - 26 February 2016).
51 Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23.
52 Re Malteurop Australia Pty Ltd [2014] FWC 2476 (Kovacic DP; 11 April 2014).
53 Note, in this regard, reg.2.06A of the Regulations does not require that an agreement be signed by, for example, a union which was an employee bargaining representative or any other person who may have self-nominated in writing or been appointed in writing to be an employee bargaining representative. Relevantly, reg.2.06A specifies that the agreement must be signed by “at least 1 representative of the employees covered by the agreement”; and include the full name, address and an explanation of the person’s authority to sign the agreement.
54 Project Blue Sky v Australian Broadcasting Authority [1988] HCA 28.
55 cf Sustaining Works at paragraphs [30]-[33].
56 Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Manufacturing Workers’ Union v Sustaining Works Pty Limited [2015] FWCFB 4422. See also Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd [2016] FWCFB 916 and McDermott Australia Pty Ltd v The Australian Workers’ Union, & “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2016] FWCFB 2222.
57 Kaizen was delivered on 5 March 2015; Sustaining Works on 13 August 2015.
58 Appeal transcript - 24 January 2019, at PN179.
59 John Holland Group Pty Ltd T/A John Holland [2019] FWCA 485 (re Civil Construction Agreement 2018-2022).