[2014] FWCFB 7940
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.604—Appeal of decision

Construction, Forestry, Mining and Energy Union
v
Collinsville Coal Operations Pty Limited
(C2014/1098)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER JOHNS

MELBOURNE, 5 DECEMBER 2014

Appeal against reserved decision of Senior Deputy President Harrison at Brisbane on 16 June 2014 in matter number AG2014/568 - right to be heard and standing - right to give notice to be covered by an agreement - permission to appeal granted - appeal upheld on a limited basis.

Introduction and background

[1] Collinsville Coal Operations Pty Limited (Collinsville) operates the Collinsville coal mine located in the northern part of the Queensland Bowen Basin. On 13 March 2014 Collinsville applied under s.185 of the Fair Work Act 2009 (the FW Act) for approval of an enterprise agreement titled the Collinsville Coal Operations Enterprise Agreement 2014 (Agreement). The Agreement was made with 21 employees who are named in the application. Each employee is described in the application as being a “self-appointed Bargaining Representative”.

[2] The hearing to consider whether the Agreement should be approved took place before Senior Deputy President Harrison on 2 May 2014 and 16 June 2014. The Construction, Forestry, Mining and Energy Union (CFMEU) sought to be heard in relation to the application. It sought to make submissions opposing the approval of the Agreement on a number of grounds, namely: it would be contrary to the objects of the FW Act and to equity, good conscience and the merits of the matter; the employees had not genuinely agreed to the Agreement in accordance with s.188 of the FW Act; there was a lack of authenticity and moral authority in the Agreement; there was no fair agreement-making between the employer and the employees; and that the Agreement did not pass the better off overall test (BOOT) in s.193 of the FW Act.

[3] The CFMEU submitted to the Senior Deputy President that it had a direct interest in the matter because it was a bargaining representative for one employee, it had a historic role and interest in the black coal mining industry, and had previously represented large numbers of persons who had worked at the Collinsville coal mine for a previous operator and were now unemployed. During the course of the hearing, her Honour made several preliminary or interlocutory rulings affecting the Appellant’s role in the proceedings (Interlocutory Decisions), including that:

[4] On 13 May 2014 an application by the CFMEU under s.615A of the FW Act for Collinsville’s application for approval of the Agreement to be referred to a Full Bench for hearing and determination, was dismissed. 2 

[5] At the conclusion of the hearing on 16 June 2014, the Senior Deputy President reserved her decision on whether to approve the Agreement (subject to the parties being directed to confer and provide advice as to the precise identification of the evidentiary materials that were before her).

[6] On 23 June 2014 the CFMEU lodged a notice of appeal against the Interlocutory Decisions. The CFMEU contended in the notice of appeal that the Senior Deputy President erred in making the Interlocutory Decisions in the following respects (particulars excluded):

[7] The CFMEU also sought a stay. The application for a stay was heard by Vice President Hatcher on 27 June 2014. The Vice President refused the stay application on balance of convenience grounds. 3

[8] On 18 August 2014 the Senior Deputy President published her decision in which she indicated that she would approve the Agreement subject to receiving undertakings in respect of three matters (Decision). 4 The Decision also set out the Senior Deputy President’s reasons for some of her earlier Interlocutory Decisions.

[9] On 28 August 2014 the Senior Deputy President approved the Agreement and noted that the three undertakings proffered by Collinsville are taken to be terms of the Agreement (Approval Decision). 5

[10] On 29 August 2014 the CFMEU filed an amended notice of appeal which took into account the Senior Deputy President’s Decision and Approval Decision, and as well as adding some further particulars to earlier grounds, it added the following grounds (particulars omitted):

[11] By the time the appeal came before us for hearing ground 8 was no longer pressed. 6

Nature of Appeal

[12] An appeal of a decision is not as of right and permission to appeal must first be obtained. 7 Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.8 The public interest is not satisfied simply by the identification of error, or a preference for a different result.9 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

[13] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified but examples of considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 11

[14] An appeal may only be made by a ‘person who is aggrieved by a decision’. In the present matter the CFMEU contends that it is a ‘person aggrieved’ by the Senior Deputy President’s various decisions, within the meaning of that expression in s.604(1). Collinsville conceded that the CFMEU was ‘a person aggrieved’ by the Senior Deputy President’s decisions, within the meaning of s. 604(1).  12 We accept that this is so.

Right to be heard and standing

[15] The gravamen of the CFMEU’s complaint on appeal is that it was a bargaining representative for the Agreement and therefore had standing to be heard in the application for the approval of the Agreement. 13 It says it was denied the opportunity to fully participate in the proceedings. The CFMEU also says that irrespective of its status as a bargaining representative it should have been permitted to fully participate in the proceedings before the Senior Deputy President, whether pursuant to s.590 or otherwise, by reason, inter-alia, of its long established history of industrial representation in the coal mining industry and at the Collinsville coal mine, its interest in the protection of wages and conditions of employees engaged in the industry and its interest in ensuring that the scheme under the Coal Mining Safety and Health Act 1999 (Qld) and the Coal Mining Safety and Health Regulation 2001 (Qld) is correctly interpreted and applied in Queensland. By being denied the opportunity to fully participate in the proceedings, the CFMEU submits that it had been denied procedural fairness. It goes further and submits that the Senior Deputy President did not permit the CFMEU to develop the arguments it wished to develop to establish that it had a right to be heard and that the Senior Deputy President had been coloured in her view about the CFMEU’s standing by reference to its status as a bargaining representative for the Agreement.14

Bargaining representative

[16] There can be little doubt that a bargaining representative for a proposed agreement will have standing to be heard in relation to an application to approve the agreement. Bargaining representatives play a central and important role in the agreement making scheme established by Part 2-4 of the FW Act. The FW Act places obligations on and grants privileges to a bargaining representative for a proposed agreement. These include:

[17] The Senior Deputy President determined that the CFMEU was not a bargaining representative for the Agreement and had no right in that capacity to be heard and nor did it have a right to give notice under section 183 of the FW Act. 22

[18] There seems no dispute that the CFMEU was not a bargaining representative of the person described in the Senior Deputy President’s decision as Employee 1.

[19] Employee 2 is a member of the CFMEU and had been since 31 January 2014. On 15 February 2014 that employee appointed himself as a bargaining representative and gave notice of that appointment to Collinsville. The CFMEU maintained that the notice of appointment given by Employee 2 was tainted and that the Senior Deputy President could not be satisfied that the notice of appointment was not given under coercion, undue influence or pressure. It relied on the purported representation made by Employee 2 in a text message to Mr Stephen Smyth, the District President of the Queensland District Branch of the CFMEU. 23 The text message exchange provides as follows:

[20] The CFMEU also relied on an earlier discussion between Mr Smyth and Employee 2, the substance of which was not permitted to be read into the transcript of proceedings before the Senior Deputy President. 24 According to Mr Smyth, on 31 January 2014 he held a telephone conversation with Employee 2 during which he told Employee 2 that Employee 2 had a right to nominate the union as a bargaining representative and that Employee 2 said to him words to the effect that Employee 2 “understood that but felt a lot of pressure because of the history of the place and being in a probationary period, that he was terrified if he put forward the union he would be gone”.25

[21] Before the Senior Deputy President, the CFMEU did not propose to call Employee 2 to give evidence and instead sought to rely on an affidavit of Mr Smyth which contained the material described above.

[22] The Senior Deputy President refused to allow the receipt of Mr Smyth’s evidence. Her reasons for doing so were as follows:

[23] The CFMEU concedes the evidentiary difficulties with some of this evidence 27 but says nevertheless that the evidence should have been admitted at first instance, that it should be before us and that we should determine the appropriate weight to be given to the evidence in the circumstances. The circumstances relied upon are set out in the further submissions of the CFMEU and are not reproduced here.28

[24] In our view the Senior Deputy President was entitled to conclude as she did for the reasons she gave and no appellable error is disclosed. The evidence sought to be admitted was evidence that could not be verified or subjected to cross-examination. It was plainly prejudicial and its probative value was highly questionable. In the circumstances the evidence was properly excluded. In any event, even if admitted the evidence at its highest suggests no more than that the Employee 2 held a perception. There is nothing in that evidence which suggests that Collinsville by any words or conduct brought about the perception. The evidence falls a long way short of establishing that the appointment by Employee 2 of himself as a bargaining representative was tainted or was procured through coercion, undue influence or pressure brought to bear by Collinsville.

[25] Section 178 provides that an “appointment of a bargaining representative comes into force on the day specified in the instrument of appointment”. It is not in dispute that the instrument of appointment was signed by Employee 2 on 15 February 2014. As that instrument came into force on that day it must also follow that if the CFMEU was a bargaining representative of Employee 2, that default position pertained until and including 14 February 2014. That is in our view the effect of ss.178 and 176(1)(b). It follows that if the CFMEU had to that point been a bargaining representative of Employee 2 for the proposed Agreement, it ceased to be so. 29

[26] Putting to one side the question whether the CFMEU had a right to give notice that it wished to be covered by the Agreement pursuant to s.183 of the FW Act at the time that the application to approve the Agreement was made, it also follows from the foregoing that the Senior Deputy President was correct in concluding that in all other respects the CFMEU was not a bargaining representative for the proposed Agreement and did not have any standing in that capacity to be heard in relation to the application to approve the Agreement.

[27] Section 183 provides as follows:

[28] The CFMEU submitted that s.183 operates so that an employee organisation that was at any time during the bargaining for a proposed agreement a bargaining representative of an employee, is entitled to give notice that it wants to be covered by the agreement. This is said to be so even if at the time the notice is given the employee organisation is no longer a bargaining representative. Consequently as the CFMEU was a bargaining representative for Employee 2 at least during that period before Employee 2 appointed himself as a bargaining representative, it was entitled to give notice and the Senior Deputy President erred in concluding otherwise. 30 The ACTU was given permission to make submissions on appeal and supported the CFMEU’s construction.31

[29] Collinsville submitted that s.183 should be interpreted so that an employee organisation would only have standing to provide written notification if it was a bargaining representative for the proposed Agreement at the time the agreement was made. It submitted that a contrary construction would lead to improbable and irrational results in that an employee who evinced an intention that an employee organisation not be a bargaining representative by appointing the employee or someone else as a bargaining representative would have the wish contradicted by the capacity of the employee organisation to later be covered by the Agreement. It submitted that once an employee takes the step under section 176 (1)(c) to appoint another person as a bargaining representative of that employee for the proposed agreement, or revokes the status of an employee organisation as a bargaining representative in accordance with section 178A(2), the employee organisation ceases to have any standing or rights in relation to the bargaining process, including the right to give notice under section 183. 32 The Australian Industry Group was also given permission to make submissions on the appeal and supported Collinsville’s construction.33

[30] Although an employee organisation must have been a bargaining representative for the proposed agreement that ultimately produced the agreement made, we do not think the narrow operation of s.183 posited by Collinsville is correct, for the following reasons.

[31] Textual and contextual considerations weigh against the construction. The language of s.183 suggests that the employee organisation need not be a bargaining representative when notice is given. This is evident by the use of the verb “was”, which in the present context is used in the third person singular past tense.

[32] If it was intended to limit the capacity of a bargaining representative to give notice under s.183 to circumstances in which the bargaining representative held that capacity at the time an agreement was made or at the time the notice is given, one would expect the provision to say so. The words “was a bargaining representative for the proposed agreement concerned” are not qualified in the manner suggested by Collinsville and the construction proposed would need those words to be read into the provision.

[33] Further the use of the words “was a bargaining representative for the proposed enterprise agreement” to describe the capacity in which an employee organisation may give notice under s.183, is not explained by the fact that an agreement has been made and so the role of the bargaining representative has ended. The FW Act envisages a continued role for bargaining representatives after an agreement is made. Bargaining representatives have standing to apply for an agreement that has been made to be approved by the Commission 34 and in considering whether to accept an undertaking the Commission must not accept an undertaking unless it has sought the views of each person who the Commission knows “is a bargaining representative for the agreement”.35 The change in the language from “bargaining representative for the proposed agreement” in the sections of the FW Act dealing with preapproval stages (ss.173-182) to “bargaining representative for the agreement” in the sections which follow (when an agreement is made), for example s.185, is explained by the fact that when an agreement is made it is no longer proposed.

[34] Where the legislature intended that a particular state of affairs be apparent at a particular time it has expressly said so by use of a temporal connection. For example, s.172(2)(a) provides that an enterprise agreement may be made with “the employees who are employed at the time the agreement is made and who will be covered by the agreement”. The same formulation is used in relation to multi-enterprise agreements. 36 Similarly s.181 (1) provides that 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”. There is nothing particularly significant about an employee organisation having been a bargaining representative for the agreement when an agreement was made for the purposes of s.183. In our view the language of s.183 recognises that an employee organisation may have ceased to be a bargaining representative for a proposed agreement at some point prior to an agreement being made but nevertheless retaining a right to give notice that it wants to be covered by the agreement.

[35] Coverage by an agreement gives the person covered certain rights beyond the terms and conditions of the agreement. A person covered by an agreement may apply for the approval of a variation 37 or for the termination38 of the agreement, or for orders in relation to a contravention of the agreement.39 Section 183 is therefore the vehicle through which important rights may be conferred on an employee organisation. In our view the narrow operation of s.183 argued by Collinsville should not be adopted absent express language to that effect.

[36] Fifthly, there is nothing in the language of s.176 which is suggestive of the appointment by an employee for whom an employee organisation is a default bargaining representative for a proposed agreement, of another person as bargaining representative for that agreement, has the effect that the employee organisation never had the status of bargaining representative for the proposed agreement. This is true also of s.178A. If that were the intended operation of those sections then one would expect to find such an intention given expression in those sections.

[37] When read in context the reference to “was a bargaining representative for the proposed agreement” in s. 183 does not operate in the narrow manner suggested by Collinsville. We think it is sufficient for a valid notice to be given under s.183 that an employee organisation was at some point a bargaining representative of an employee for the proposed agreement for which approval of the Commission is sought.

[38] It does not follow however that the capacity of an employee organisation, which is no longer a bargaining representative, to give notice under s.183, results in the organisation having standing to make submissions or to otherwise be heard in opposition to an application approval of an agreement. Section 183 is of limited utility. It serves only to alert the Commission to the fact that an employee organisation that was a bargaining representative for the proposed agreement now wishes to be covered by the agreement. The result of a valid notice under s.183 is that the employee organisation will be noted in the decision approving the agreement as being covered by the agreement. 40

[39] A notice under s.183 may only be given after the agreement is made. Properly understood, the notice under s.183 is a notice that if the agreement as made is approved by the Commission the employee organisation giving the notice wants to be covered by it. It strains both the language and apparent purpose of s.183 to construe the provision as providing a right to be heard in opposition to the approval of the agreement. Consequently, the CFMEU did not obtain any right to be heard before the Senior Deputy President by reason of its notice given under s.183 of the FW Act.

[40] Collinsville asserted before the Senior Deputy President that it initiated bargaining for the proposed Agreement on 15 February 2014 41, the same day on which Employee 2 appointed himself as a bargaining representative. It was not in dispute that Employee 2 was given a notice of employee representational rights by Collinsville on that day. To put this in context, Collinsville initiated bargaining for the Agreement on 4 February 2014, however it says it discontinued that process because there was a typographical error in some of their procedural documents.42 There appear to have been an error in the description of the employer in notices of employee representational rights which appears to have been issued on 4 February 2014. Collinsville submitted before the Senior Deputy President that bargaining commenced afresh on 15 February 2014.43 It submitted that in respect of the fresh process, Collinsville completed the preapproval steps, which included issuing a new notice of employee representational rights and a new appointment of employee bargaining representative form to each of the relevant employees. It submitted before the Senior Deputy President that for the purposes of the application, the Commission must only consider the process which commenced on 15 February 2014 and that any process which occurred prior to that date was irrelevant.44 In support of its assertion that bargaining commenced afresh on 15 February 2014 Collinsville relied on the following passage in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining, and Energy Union:45

[41] The decision in Peabody concerned the validity of the notice considered in the context of an application to approve an agreement. The passage relied upon does not stand for a more general proposition that once an invalid notice is given then the issuing of a fresh notice of employee representational rights commences bargaining anew or afresh. Whether the whole process must begin anew depends on the circumstances and in particular, whether a valid notice can be given within the time prescribed after an employer agrees to bargain or initiates bargaining. The issuing of a representative rights notice to employees does not mark out the time at which bargaining for a proposed agreement commences, although it may do so if given contemporaneously with an agreement to bargain or the initiation of bargaining. Indeed a notice of employee representational rights may be given within a reasonable period before an employer has agreed to bargain or has initiated bargaining for an agreement. 47

[42] The CFMEU submitted that Collinsville agreed to bargain or initiated bargaining during the first week that the 21 employees began employment, namely between 28 and 31 January 2014 at which time it is suggested that the employees were each given a notice of employee representational rights during the on boarding program supervised by Mr Dave Olive. 48 Even if that be correct, for the reasons given in the preceding paragraph, the issuing of a notice to employees of the representational rights does not mark the beginning of bargaining. Bargaining for an enterprise agreement, relevantly, begins when the employer agrees to bargain or initiates bargaining. Collinsville has said that it initiated bargaining on 4 February 2014 and the material relied upon by the CFMEU, provides no basis for concluding otherwise.

[43] There is nothing to suggest that the proposed Agreement in relation to which Collinsville initially commenced bargaining was a different agreement in character, form, substance or scope to the agreement in relation to which bargaining said to have commenced afresh on 15 February 2014. Indeed paragraphs [1] and [2] of Collinsville’s submissions before the Senior Deputy President make it clear that the agreement in relation to which bargaining commenced on 4 February 2014 is the same agreement for which approval was sought. 49 There is also nothing in the material to suggest that Collinsville stopped proposing the agreement at any time between 4 and 15 February 2014.

[44] According to the statutory declaration that accompanied the application for approval of the Agreement, the last of the notices of employee representational rights was given to an employee on 17 February 2014. 50 Section 173(3) provides that the employer must give the notice as soon as practicable, and no later than 14 days, after the notification time for the agreement. The notification time for the proposed agreement is relevantly the time when the employer agrees to bargain, or initiates bargaining, for the agreement.51

[45] The last of the notices of employee representational rights was given no later than 14 days after Collinsville initiated bargaining on 4 February 2014. The reissuing of the notice between 15 and 17 February 2014 did not recommence or start afresh bargaining for the proposed agreement that had commenced on 4 February 2014. There was no necessity that bargaining should commence afresh since the subsequent notices given to employees were given within the statutory timeframe. To the extent that the Senior Deputy President concluded that bargaining commenced on 15 February 2014 then she was incorrect.

[46] It is not in dispute that Employee 2 was a member of the CFMEU between 4 February 2014 and 14 February 2014. During that period the CFMEU was a bargaining representative for the proposed agreement by reason of section 176(1)(b). The CFMEU ceased to be a bargaining representative for the proposed agreement when Employee 2 appointed himself as a bargaining representative.

[47] Given our construction of s.183 of the FW Act, it follows that as the CFMEU was a bargaining representative for the proposed agreement for the period between 4 February 2014 and 14 February 2014 it was entitled to give notice that it wished to be covered by the Agreement. The CFMEU gave notice after the Agreement was made and before it was approved that it wished to be covered by the Agreement. 52 To the extent that the Senior Deputy President concluded that the CFMEU was not entitled to give notice under section 183 and did not note in the Approval Decision that the Agreement covers the CFMEU, her Honour was in error.

Right to be heard other than as bargaining representative

[48] It is accepted that the FW Act does not provide for intervention in proceedings before the Commission by a non party. Section 590 of the FW Act provides, relevantly that the Commission may, except as provided by the FW Act, inform itself in relation to any matter before it in such manner as it considers appropriate, including by inviting, subject to any terms and conditions determined by the Commission, oral or written submissions. 53

[49] The CFMEU says that it was not necessary for it to have been a party to the proceeding in order to have a right to be heard. It says that it was sufficient that it had some right, interest or legitimate expectation that might be affected by the proceeding. Consequently, it says that it should have been afforded procedural fairness by the Senior Deputy President and that by being prevented from putting its case in opposition to the approval of the Agreement it was denied procedural fairness.

[50] The CFMEU relied on the following passage of the judgement of Mason J in Kioa v West: 54

[51] It was submitted that the FW Act does not contain any intention to the contrary such that the CFMEU should not be heard on an application to approve the Agreement if the decision to approve the Agreement will affect its rights, interests or legitimate expectations. 56

[52] In Annetts v McCann 57 the High Court (per Mason CJ, Deane and McHugh JJ) said:

[53] No party quarrelled with the propositions set out in passages extracted from the decisions above or with the proposition that the Commission is an administrative decision-making body. The more difficult issue concerns the identification of the right, interest or legitimate expectation vested in the CFMEU which is said to be affected by a decision to approve the Agreement. The CFMEU submitted that its rights, interests and legitimate expectations were affected, or potentially affected by the approval of the Agreement. 58

[54] As to the CFMEU’s rights that are said to be affected, the CFMEU submitted, in summary, that the decision to approve the Agreement will affect its right to represent employees at the mine and for these employees to be members of the CFMEU. Further, it will affect its capacity to protect terms and conditions of employment. 59 Other rights relied in by the CFMEU are identified earlier and are not reproduced here.

[55] In our view this argument has no substance. Firstly, the argument presupposes that the CFMEU has some particular right which will be taken away or interfered with, if the Agreement is approved. The CFMEU’s entitlement to represent the industrial interests of employees at the Collinsville coal mine is to be derived from the CFMEU’s rules. The approval of the Agreement will not interfere with that. Before the Agreement was approved the terms and conditions of the employees covered by the Agreement were determined, inter alia, by the Black Coal Mining Industry Award 2010, the applicable modern award. Under the dispute settlement procedure of the modern award the CFMEU has no particular right of representation. Representation may be sought by employees in relation to disputes and in relation to consultation. Under the modern award employees choose their representation. They may choose the CFMEU. That position is not changed by approval of the Agreement. Employees may choose to be represented by the CFMEU in disputes under the Agreement and in consultation matters. In any event such rights are vested in the employees not in the CFMEU. The Modern Award is not a respondency award made in settlement of an interstate industrial dispute involving the CFMEU. The statutory basis and constitutional underpinning of modern awards are significantly different to awards made under predecessor legislation in settlement of disputes.

[56] Secondly, the Agreement does not affect the rights of an employee covered by it to choose whether he or she wishes to join, continue to be or cease to be, a member of the CFMEU.

[57] Thirdly, the approval of the Agreement does not affect the right of the CFMEU to be involved in bargaining for any successor or replacement agreement, nor does it affect the right of the CFMEU to represent employees more broadly engaged in the coal mining industry or to advocate for improvements to the terms and conditions under which those employees are employed.

[58] Fourthly, the approval of the Agreement does not affect the capacity of an officer of the CFMEU who is a permit holder under the FW Act to investigate suspected contraventions of the FW Act or of the terms of the Agreement. 60 Nor does it affect the capacity of the permit holder to enter Collinsville’s premises for the purposes of holding discussions with employees.61

[59] Fifthly, to the extent that it was suggested that the CFMEU’s capacity to represent employees and protect their interests under the Coal Mining Safety and Health Act 1999 (Qld) and the Coal Mining Safety and Health Regulation 2001 (Qld) is undermined or taken away by the approval of the Agreement, that proposition is rejected. As s.29 of the FW Act makes clear, an enterprise agreement applies subject to, and does not prevail over, a State law dealing with occupational health and safety matters. Such rights or interests as the CFMEU may have under those laws are clearly unaffected by the approval of the Agreement.

[60] Sixthly, the CFMEU’s reliance on rights that it had under agreements which previously applied to work at the Collinsville coal mine 62 is misconceived in that whatever else might be said about the content of those agreements, they did not cover the employees who are now covered by the Agreement when the agreement was made and they did not cover Collinsville. Consequently the CFMEU had no particular right under those agreements vis-a-vis the employees or Collinsville, and so no right of the CFMEU is affected by the approval of the Agreement.

[61] The CFMEU also relied upon the matters set out in paragraphs [29] – [40] of the affidavit of Mr Smyth affirmed on 25 June 2014 63 in support of its proposition that its right, interest or legitimate expectation is affected by the approval of the Agreement. Essentially Mr Smyth’s affidavit speaks to the history of the CFMEU in its representation and membership at the Collinsville coal mine, the attempts to de-unionise at the mine, the prospect of the strategy adopted by Collinsville and its related entities being adopted by other operators in the black coal industry in Queensland and New South Wales and the CFMEU’s desire to protect its interest under relevant occupational health and safety legislation (discussed earlier above) which are adversely impacted by the incorporation into the Agreement of Collinsville’s fatigue management policy.64

[62] Doubtless, the CFMEU has an interest in all of these matters or even some expectation as to these matters but that will not be enough to attract the right to be heard. As McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam: 65

[63] Later their Honours said:

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

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

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

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

[68] An eligible union was entitled to be heard on an application to the Commission to approve the implementation of an EFA. 77 Further, s.170NB(1) of the IR Act provided that an organisation of employees was entitled to be heard on such an application if it was bound by an award that bound the employer party to the EFA in respect of work performed in the relevant enterprise. There is no such express right to be heard in the FW Act and the role of organisations of employees in the bargaining and agreement approval provisions under the FW Act is very different to that provided for in the IR Act.

[69] That an employee organisation has an ongoing relationship with its members who might become covered by an agreement and has a role under its rules in representing those members is not relevant in the context of a right to be heard in relation to the approval of an agreement. 78 The FW Act does not confer a right on employee organisations (other than in the case of the greenfields agreement) to be covered by an agreement if it was not a bargaining representative. Likewise, the FW Act does not confer upon an employee organisation a role in enterprise bargaining under the FW Act outside of its status as a bargaining representative. The mere fact that an employee organisation has an ongoing relationship with its members and is entitled to represent their industrial interests is not a sufficient basis to conclude that the approval of an enterprise agreement will adversely affect a right, interest or legitimate expectation of that employee organisation.

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

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

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

[73] We are therefore not persuaded that the Senior Deputy President erred in not giving the CFMEU the opportunity to be heard or to lead evidence in relation to its opposition to the approval of the Agreement.

[74] We should also observe that the CFMEU’s reliance on its desire to advance arguments based on the decisions in the Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (Gordonstone) 79 and Grocon Pty Ltd Enterprise Agreement (Victoria) (Grocon)80 does not advance the CFMEU’s right to be heard argument. Those cases were decided under a different statutory regime and importantly one in which there was the capacity to seek leave to intervene in proceedings.81

[75] We would make the observation however, that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person of organisation. 82 In this case the Senior Deputy President chose to exercise that power by permitting the CFMEU to be heard on the question of whether the Agreement passed the BOOT.

[76] Finally as to the CFMEU’s submissions that the Senior Deputy President did not give it an opportunity to develop the arguments it wished to develop on the question of a right to be heard, given our conclusions above, we have found it unnecessary to reach a concluded view on this issue. We accept that the CFMEU (as with any person seeking to be heard) is entitled to be given a proper opportunity to develop its argument on the question whether it should be heard. The CFMEU has had full opportunity to develop its argument before us. It did so and its argument did not persuade us that it should have been heard. Therefore, even if its submission is correct, any failure at first instance has now been rectified.

[77] Returning then to the grounds of appeal.

Grounds of Appeal

[78] Given our conclusions above it is unnecessary that we deal with ground 13.

[79] Ground 8 was not pressed.

[80] Given our conclusion that the CFMEU was a bargaining representative from 4 February to 14 March 2014 of Employee 2, it is unnecessary to deal further with ground 6.

[81] As to ground 7 the Senior Deputy President correctly concluded that the CFMEU was not a bargaining representative when it sought to be heard and had no standing in that capacity to be heard. The CFMEU’s previous status as bargaining representative did not affect the correctness of that conclusion. As we have concluded that the CFMEU did not have any other basis for asserting that it had a right to be heard it is unnecessary to deal further with this ground.

[82] It follows that grounds 2, 3, 4, 5, 9 and 10 fail to establish an appellable error or are not necessary to decide as they deal with or are contingent upon standing or right to be heard.

[83] Ground 1 is misconceived. The decision in Peabody does not establish a rule of general application that an employee organisation has a right to be heard, to lead evidence or to cross-examine witnesses on an application to approve an enterprise agreement. No issues about the CFMEU’s participation were taken by any party in Peabody and other peak organisations were invited to make submissions as to the question that was to be determined about the validity of the notice of employee representational right.

[84] Ground 11 concerns the adequacy of the reasons given by the Senior Deputy President for the various decisions the subject of this appeal. The principles that govern the duty to give adequate reasons for a decision are usefully summarised in Barach v University of New South Wales. 83 In Barach a Full Bench of Fair Work Australia said:

[85] In our view there is little foundation in the CFMEU’s criticism. Although the CFMEU does not particularise its criticism and its written submissions on the point are confined to three lines, 85 on a review of the Senior Deputy President’s reasons recorded in transcript and the Decision it seems to us clear that the Senior Deputy President engaged with the arguments advanced by the CFMEU, made factual findings as were necessary, addressed material questions of fact and law and adequately explained her conclusions. It was not necessary for the Senior Deputy President to spell out every detail in her reasoning process or to deal with every single matter which was raised during the proceeding. We are satisfied that the Senior Deputy President gave adequate reasons for the decisions the subject of this appeal.

[86] As to ground 12, there is nothing in the material relied upon by the CFMEU, which would suggest that the notice of employee representational rights given to employees between 15 and 17 February 2014 was not validly given. For the reasons given earlier, although we agree that the Senior Deputy President was in error in concluding that bargaining for the Agreement began on 15 February 2014, this is an insufficient basis for concluding that the notices given were not valid. We are satisfied that the notices were valid notices and consequently ground 12 fails.

[87] Ground 14, so far as it concerns the National Employment Standards (NES) and the Coal Mining (Long Service Leave Funding) Act 1992, proceeds upon the false premise that the terms of those instruments were incorporated by reference into the Agreement.

[88] Clause 3 of the Agreement provides that the Agreement does not exclude the NES or any provision of the NES. It also provides that the provisions of the NES shall have effect in accordance with the FW Act. It does not in terms or by implication incorporate the NES by reference. It merely restates the effect of s.55(1) of the FW Act. The Senior Deputy President was patently correct in concluding that the terms of the NES were not incorporated by reference into the Agreement.

[89] Clause 14.2 of the Agreement provides:

[90] Clause 14.2 does not in terms or by implication incorporate the State legislation therein specified. The clause merely directs attention to the fact that such entitlements as may exist under that legislation are not excluded by operation of the Agreement. The Senior Deputy President was correct in concluding the terms of the State legislation were not incorporated by reference into the Agreement.

[91] It is clear that Collinsville’s Fatigue Management Policy is incorporated by reference into the Agreement. It is also clear that the Senior Deputy President had regard to the evidence given by Mr Olive 87 that employees were made aware of the content and existence of the Fatigue Management Policy during the on boarding process in January 2014 and that the employees were alerted to the fact that the policy as well as other policies were accessible using the site based touch screens.88 The employees therefore had access during the access period to the incorporated policy. There is no requirement that incorporated material be explained to employees during the access period. An explanation of the incorporated material can be given before the access period has begun. Senior Deputy President was entitled to rely upon the evidence of Mr Olive in this regard. The Senior Deputy President was entitled on the material to be satisfied that the requirements as to the material incorporated had been met and no appellable error is disclosed.

[92] It follows that ground 14 fails to establish an appellable error.

[93] As to ground 15, the Senior Deputy President was entitled to rely on the material in the statutory declaration filed in support of the application for approval of the Agreement. That declaration set out the steps taken by Collinsville to explain to the employees the terms and effect of the agreement. For the reasons given earlier the incorporation of Collinsville’s Fatigue Management Policy does not displace the requirements of State occupational health & safety laws or the requirements of such laws relating to the content and formulation of a fatigue management policy. For that reason it was unnecessary for Collinsville to explain, as suggested by the CFMEU, the impact of the Agreement vis-a-vis the requirements of the legislation. The Senior Deputy President was entitled to be satisfied that the steps taken by Collinsville as set out in the declaration and supplemented by Mr Olive’s affidavit complied with the statutory requirement to explain the terms and effect of the Agreement to the employees.

[94] Ground 16 relies for its foundation on the fact that the CFMEU wished to lead evidence which would have established that there were reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. 89 In this regard the CFMEU sought to rely on material principally in the affidavits of Mr Smyth from which it intended to construct what it described as a Gordonstone-style argument, which it submitted was accepted in Grocon. In effect the Appellent wished to demonstrate that Collinsville had no moral authority to make the Agreement and that consequently there were reasonable grounds for believing that the employees did not genuinely agree to the Agreement.90

[95] Having reviewed the material on which the CFMEU sought to rely we are not persuaded that the material establishes any reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. Much of the material concerns allegations about particular motives of Collinsville in pursuing or making the Agreement. None of the motives or objectives identified is illegitimate, provided that it is not brought about by unlawful means. The motivation of Collinsville is not, in the context of the current statutory framework, a matter which speaks to whether the employees genuinely agreed to the Agreement.

[96] It must also be borne in mind that ultimately the decision in Gordonstone turned on the fact that the company making the Agreement was not at the time that it made the Agreement and sought certification of it, operating or managing the mine at which the Agreement was said to operate. Consequently, there was not an agreement of a kind that could be certified under the then Workplace Relations Act 1996 (WR Act). The decision in Grocon turned on the fact that the two employees who were to be covered by the agreement were not given important information about the scope and effect of the agreement, including that they would be the only employees who would be covered by the Agreement. Consequently, their consent was not informed and therefore not genuine within the meaning of the then WR Act. None of the material relied upon by the CFMEU establishes any such similarly relevant circumstance.

[97] Section 188(c) is not concerned with an employer’s motive for making an agreement. It is concerned with the genuineness of the agreement by the employees. None of the material raises questions about the genuineness of agreement by employees. That an earlier notice issued by Collinsville did not mention that a union could be a bargaining representative of employees (as alleged by the CFMEU) does not take the matter further. Any confusion that might have been created by the earlier notice was corrected by the valid notices of employee representational rights issued to employees between 15 and 17 February 2014. Similarly (for reasons given earlier) the incorporation of Collinsville’s Fatigue Management Policy by reference into the agreement, does not have the effect contended for by the CFMEU and so does not affect the question whether the employees genuinely agreed to the Agreement.

[98] Ground 17 alleges in error in the Senior Deputy President’s finding the Agreement passed the better off overall test (BOOT). We have reviewed the analysis contained in exhibit SS21 to the affidavit of Mr Smyth 91 and observe firstly, the analysis, to the extent that it compares the terms of the Agreement to instruments other than the applicable modern award, is flawed. The Senior Deputy President’s task in considering the BOOT involved a comparison between the Agreement and the modern award. We have also reviewed the modern award and the Agreement, as well as the BOOT analysis prepared by Collinsville,92 and we are satisfied that the Senior Deputy President was correct in her conclusion that each class of employee covered by the Agreement was better off overall than under the modern award. Ground 17 does not disclose an appellable error.

Permission to appeal

[99] But for the error that we have identified earlier above in the Approval Decision not noting that the CFMEU is covered by the Agreement, we would not be persuaded on public interest grounds or otherwise to grant permission to appeal. However the right of an employee organisation that was bargaining representative for a proposed enterprise agreement to be covered by that enterprise agreement if notice is given under s.183 is a substantive right and the error warrants the granting of permission to appeal and we do so.

Disposition of Appeal

[100] The appeal is upheld to the extent only of the error identified. The appeal is otherwise dismissed.

Rehearing

[101] For the reasons given earlier we are satisfied that the CFMEU was a bargaining representative of Employee 2 for the proposed Agreement for the period between 4 February 2014 and 14 February 2014. The CFMEU was entitled to give notice under s.183 of the FW Act that it wanted to be covered by the Agreement. It gave the notice after the Agreement was made and before it was approved by the Commission. Consequently pursuant to s.607(3) of the FW Act we propose (subject to what is said below) to vary the Senior Deputy President’s decision in [2014] FWCA 5705 by including a note in the decision that the Agreement covers the CFMEU as required by s.201(3) of the FW Act.

[102] The notice under s.183 given by the CFMEU is contained in a Form F18 statutory declaration declared by Stephen Smyth on 31 March 2014. 93 As the introductory words in Form F18 make clear, the statutory declaration is “in support of an application . . . for approval of an enterprise agreement . . .”.94 It is in that context that question 6 of the declaration asks whether “the Union gives notice pursuant to section 183 . . .”.95 In answer to that question the CFMEU has indicated “Yes”96. Given that its clearly stated purpose was to oppose the approval of the Agreement97, we propose to give the CFMEU 7 days from the date of this decision to give notice confirming that Mr Smyth’s answer to question 6 of the statutory declaration dated 31 March 2014 correctly represents the CFMEU’s position that it wants to be covered the Agreement. Such notice should be delivered to the Chambers of Deputy President Gostencnik with a copy served on the Appellant.

PRESIDENT

Appearances:

B. Docking of Counsel for the Appellant

J. Murdoch QC for the Respondent

J. Dolan for the Australian Council of Trade Unions

D. Miller for Australian Industry Group

Hearing details:

Brisbane.

2014.

2 October

Further written submissions:

9 October 2014 submissions by the Appellant, Respondent, ACTU, AIG

14 October 2014 submission by the Appellant, Respondent, ACTU, AIG

 1   See transcript at AB146 – AB197

 2   [2014] FWC 3129

 3   [2014] FWC 4276

 4   [2014] FWC 5628

 5   [2014] FWCA 5705

 6   Appellant's Outline of Submissions at [11(b)]

 7   Section 604(1)

 8   O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied v Lawler [2011] FCAFC 54 at [44]-[46]

 9   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663

 10   [2010] FWAFB 5343 at [27]

 11   Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at para 2328.

 12   Transcript PN 675 – PN 678

 13   We note that in CEPU and AMWU v Main People Pty Ltd [2014] FWCFB 8429 a Full Bench of the Commission determined that a right to represent employees under the terms of the agreement and the likelihood that members of the appellant unions would in the future be employed under the agreement resulted in the appellants having standing to institute the appeal as those factors gave the appellants an interest beyond that of an ordinary member of the public. We would observe that in the context of the statutory scheme established for agreement making and approval, the question whether a person should be heard during an application to approve an agreement is a different question whether a person is aggrieved by a decision for the purposes of bringing an appeal. For the reasons set out at [70] of our decision, we do not regard the possibility or even likelihood that members of an employee organisation might in the future be employed under the agreement as grounding a right to be heard. Nor does that fact that employees covered by an agreement might choose to be represented by the employee organisation under particular terms of the agreement give rise to a right to be heard. The right of representation under the terms of an agreement resides with the employee, not the organisation or person selected by the employee to provide representation.

 14   Transcript PN68 – PN71

 15   Section 228

 16   Section 236

 17   Section 229

 18   Section 238

 19   Section 242

 20   Section 185

 21   Section 183

 22   [2014] FWC 5628 at [43] – [47]

 23   AB75 at [70]; AB172 at PN384;

 24   AB156 at PN238 – PN 241

 25   AB74 at [69]

 26   [2014] FWC 5628 at [50]-[52]

 27   Appellant's Outline of Submissions at [21]

 28   CFMEU’s Further Submission 9 October 2014 at [14]-[19]

 29   Section 176(1)(b), (c) and (4)

 30   See CFMEU’s further submissions dated 9 October 2014

 31   See Further Submissions of Australian Council of Trade Unions dated 9 October 2014

 32   See Respondent’s Outline of Submissions dated 9 October 2014

 33   See Further Submissions of the Australian Industry Group dated 9 October 2014

 34   See section 185(1)

 35   The section 190(4)

 36   See section 172(3)(a)

 37   Section 210

 38   Sections 222 and 225

 39   Sections 50 and 539(2) item 4

 40   See section 201(2)

 41   AB258 at [3] and AB162 at PN 296

 42   AB258 at [2]

 43   Ibid at [3]

 44   Ibid

 45   [2014] FWCFB 2042

 46   Ibid at [45]

 47   See section 173(4)

 48   The ground of appeal 12 and the particulars thereto at AB30 and the affidavit of Dave Olive at AB285

 49   AB258

 50   AB228

 51   Section 173(2)

 52   AB393

 53   Section 590(1) and (2)(b)

 54   (1985) 159 CLR 550

 55   Ibid at 584

 56   Transcript PN115

 57   (1990) 170 CLR 596

 58   Transcript PN132 – PN133

 59   Transcript PN134 – PN139

 60   See section 481

 61   See section 484

 62   Transcript PN155 – PN157

 63   Vol 2 AB1 at 4 – 6

 64   Ibid

 65   (2003) 214 CLR 1

 66   Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 563, 583

 67   [1985] AC 374 at 408-409

 68   Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489 at 529

 69   Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at 16-17 [47]

 70   Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at 120-125 [34]- [48]. See also Finn and Smith, "The Citizen, the Government and 'Reasonable Expectations'", (1992) 66 Australian Law Journal 139 at 140-144.

 71   Ibid at 20 [61]-[63]

 72   [1995] HCA 20; (1995) 183 CLR 273 at 311-312. See also Allars, "One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government", [1995] SydLawRw 16; (1995) 17 Sydney Law Review 204 at 222-224.

 73   Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587.

 74   [1990] HCA 21; (1990) 170 CLR 1 at 39.

 75   Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 at 285 per Mahoney JA

 76   Ibid at 27 – 28 [81] – [83]

 77   Enterprise Flexibility Agreements Test Case May 1995 (1995) 59 IR 430 at 451

 78   See CFMEU v Hamberger and Anor (2011) 195 FCR 74 in which Katzmann J discusses the meaning of “will be covered” in s.172 of the Act and concludes at [69]-[79] that persons not yet employed but who might in the future be covered by an agreement are not within the class of persons “who will be covered”; See also Mermaid Marine Vessel Operations Pty Ltd v MUA [2014] FWCFB 1317 at [73]-[74] and CBI Contractors Pty Ltd v CFMEU [2011] FWAFB 7642 at [22]-[23]

 79   (1999) 93 FCR 317

 80   (2003) 127 IR 13

 81   See for example section 43 Workplace Relations Act 1996

 82   Section 590

 83   (2010) 194 IR 259

 84   Ibid at 262 – 263

 85   See appellant's outline of submissions [11 (c)], [24] and [33]

 86   AB112

 87   [2014] FWC 5628 at [94]

 88   AB285 – AB287

 89   See section 188(c)

 90   Transcript PN398 – PN463

 91   Vol 3 AB527

 92   AB288 – AB302

 93   AB391

 94   Ibid

 95   AB393

 96   Ibid

 97   AB392

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