FWAFB 8866
FAIR WORK AUSTRALIA
REASONS FOR DECISION
Fair Work Act 2009
s.604—Appeal of decisions
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
MELBOURNE, 18 OCTOBER 2012
Appeal against decisions - approval of enterprise agreements - no valid applications.
 These are applications for permission to appeal and, if permission is granted, appeals pursuant to s.604 of the Fair Work Act 2009 (the Act) by Kaizen Hospitals (Essendon) Pty Ltd, Kaizen Hospitals (Malvern) Pty Ltd and Kaizen Hospitals (Mount District) Pty Ltd (the Companies). The Companies seek to appeal against three decisions of Deputy President Hamilton made pursuant to s.185 of the Act. 1 In the decisions, the Deputy President approved three enterprise agreements2 (the Agreements) covering nurses at the Essendon Private Hospital, Malvern Private Hospital and Melbourne Eastern Private Hospital in Victoria.
 When the appeals came before the Full Bench for hearing, we requested the parties, as a preliminary matter, to put their submissions as to whether there were valid applications before the Deputy President for the approval of the Agreements.
 After hearing the submissions of the parties, we decided that there were not valid applications for approval before the Deputy President. Accordingly we granted permission to appeal in each matter, allowed the appeals and set aside the approval of the Agreements.
 We now provide the reasons for our decision.
 The background to the appeals can be briefly stated as follows. On 8 August 2012, applications for the approval of the Agreements were lodged with Fair Work Australia (FWA). In relation to each application, the application:
 Each application was accompanied by an “Employer’s Declaration in Support of Application for Approval of Enterprise Agreement” (Form F17) signed by Mr Sankar Subramanian, who was identified as the “Hospital Director” on the declaration relating to Kaizen Hospitals (Essendon) Pty Ltd and as “Corporate Manager, Victoria” on the other two declarations. The applications were also accompanied by declarations (Form F18) signed on behalf of the Australian Nursing Federation (ANF) by Ms Lisa Fitzpatrick, the Secretary of the ANF (Victorian Branch), indicating that the ANF had been a bargaining representative for employees covered by the Agreements, that it agreed with the information given by the employers in the F17 declarations, that it supported the approval of the Agreements, and that it wished to be covered by them.
 The Deputy President held “Hearings on the Papers in Chambers” in relation to the three matters on 16 August 2012. A Notice of Listing was sent to the contacts named in the applications and the F17 and F18 declarations, and a notification was posted on the FWA hearings list. On 17 August 2012 the Deputy President issued decisions approving the Agreements.
 In the Notices of Appeal filed by the Companies, it is alleged that the Deputy President erred in approving the Agreements. This was because the Companies did not agree to the terms of the relevant Agreements, did not appoint the employer bargaining representative (SIAG) which made the applications for the approval of the Agreements, and did not authorise the company representative who made the statutory declarations in support of approval to do so. As a consequence, it was said that the Deputy President reached an erroneous finding that valid applications had been made pursuant to s.185 of the Act.
 An appeal under s.604 of the Act may only be pursued with the permission of FWA. This would normally require an appellant to demonstrate an arguable case of appealable error and refer to other considerations which would justify the granting of permission to appeal. Subsection 604(2) requires FWA to grant permission to appeal if it is satisfied that it is in the public interest to do so. Where permission to appeal is granted, the appeal proceeds by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. 3
 In the appeal proceedings we were taken to the applications before the Deputy President and the supporting material. It is clear that the negotiations for the Agreements and the applications for the approval by FWA proceeded on the basis that SIAG was the employer bargaining representative. It is now clear that SIAG was not appointed by the Companies as the employer bargaining representative in accordance with the relevant provisions of the Act.
 Section 176 of the Act provides for bargaining representatives for a proposed enterprise agreement and their manner of appointment. Section 176(1)(a) relevantly provides that an employer that will be covered by an agreement is a bargaining representative for the agreement. Section 176(1)(d) enables an employer to appoint a bargaining representative and provides:
“A person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.”
 Section 178 provides for the commencement of the appointment of a bargaining representative as being the date that is specified in the instrument of appointment. Section 178(2)(b) requires that the instrument of appointment of a bargaining representative made by an employer be given on request to a bargaining representative of an employee. Section 178A provides for the revocation of the appointment of a bargaining representative by “written instrument” - s.178A(1).
 Having regard to the abovementioned provisions, it is clear that the Act adopts prescriptive and formal requirements for the appointment of bargaining representatives and that the power of a bargaining representative to represent the employer in negotiations for an enterprise agreement arises from the instrument of appointment. It is fundamental to the exercise of power by a bargaining representative that the appointment has been validly made.
 In the present appeals, it is evident that SIAG was not appointed as a bargaining representative for the Companies in accordance with the Act. There was no instrument of appointment or other written document or any other evidence produced in the appeal proceedings to show that SIAG had been appointed as the employer bargaining representative for the Agreements. It must therefore be concluded that SIAG was not a duly appointed bargaining representative of the Companies.
 Section 185 of the Act provides that a bargaining representative must apply to FWA for approval of an enterprise agreement where an enterprise agreement is made. Section 185(1) provides:
“Application for approval
(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to FWA for approval of the agreement.”
 In relation to the applications for approval, it would be open to conclude on the material before us either that the applications were made by the Companies concerned or that they were made by a person purporting to act as the employer bargaining representative. Whichever view is taken, we do not consider that valid applications were before the Deputy President.
 If the applications were made by an employer bargaining representative, then they were made by a bargaining representative who was not validly appointed as such. This is the case whether the application was signed by Ms Cook in the capacity as the employer bargaining representative or on behalf of SIAG. Neither Ms Cook nor SIAG had been so appointed as the employer bargaining representative in accordance with the Act. In the alternative, if the view is taken that the applications for approval were made by the employing companies, the applications were filed with FWA and signed by a bargaining representative who was not duly appointed. In such circumstances, it cannot be concluded that the applications were made by the employing companies as required by s.185(1) of the Act. The mere lodgement of an application in the name of an employing entity but without authorisation to do so is not sufficient to meet the requirements of s.185.
 In neither of the scenarios posited above do we consider that valid applications for the approval of the Agreements were made.
 In these circumstances, we consider that there were no valid applications for the approval of the Agreements before the Deputy President. The approval procedure and the decisions made to approve the Agreements were tainted by this defect.
 For all the above reasons, we decided that it was appropriate in these matters to grant permission to appeal, to allow the appeals and to set aside the approval of the Agreements.
 In so deciding, we note that the circumstances of the present appeals are somewhat bizarre. There has been a whole course of negotiations over many months between the ANF and SIAG in relation to the making of enterprise agreements for the three Victorian hospitals. As well as the ANF and SIAG, the negotiations have at times involved at least one person with managerial responsibilities for the operations of the hospitals. However it is noted that this person, after the approval of the Agreements, advised the ANF that he had acted without the approval or authority of the Companies in signing the Agreements. The Companies submitted in the appeal proceedings that they had no knowledge that the enterprise agreements were being negotiated and were unaware that applications had been made to FWA for the approval of the Agreements.
 Although we have decided that, because of deficiencies in relation to the applications for the approval of the Agreements, the appeals should be allowed, this should not be taken as any criticism of the Deputy President or the other parties involved. The Deputy President considered and determined applications which on their face were made in accordance with the Act. There was no material or submissions before him to suggest that there were any irregularities or deficiencies in relation to the applications. Further, there is no reason to conclude that the ANF or SIAG acted other than in a bona fide way in the negotiations for the enterprise agreements and in the making of the Agreements. However, in the light of our decision, it would be wise for parties to enterprise negotiations in the future to ensure that the requirements of the Act in relation to the appointment of bargaining representatives are observed and to request a copy of relevant instruments of appointment (see s.178(2)(b)). Consideration might also need to be given to whether the Fair Work Rules 2010 should be amended so as to require documentation in relation to appointments to be provided when an application for the approval of an enterprise agreement is made by a bargaining representative.
SENIOR DEPUTY PRESIDENT
K G Bennett of counsel and P Ludeke, solicitor, for the Companies.
A Duffy of counsel, N White, solicitor and B Megennis for the ANF.
1  FWAA 7066;  FWAA 7068;  FWAA 7071.
2 Essendon Private Hospital and the Australian Nursing Federation and Health Services Union of Australia Nurses Enterprise Agreement 2012 (AE896209); Malvern Private Hospital and the Australian Nursing Federation and Health Services Union of Australia Nurses Enterprise Agreement 2012 (AE896211); Melbourne Eastern Private Hospital and the Australian Nursing Federation and Health Services Union of Australia Nurses Enterprise Agreement 2012 (AE896213).
3 (2000) 203 CLR 194 at 205.
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