[2016] FWC 7936 [Note: This decision has been quashed - refer to Full Bench decision dated 14 February 2017 [[2017] FWCFB 871]


Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

Corrections and detentions



Application for approval of the JBU Agreement 2016.

[1] This decision relates to an application by Broadspectrum (Australia) Pty Ltd (Broadspectrum) for approval of the Justice Business Unit (JBU) Enterprise Agreement 2016 (the Agreement), in accordance with section 185 of the Fair Work Act, 2009 (the Act).

[2] United Voice has sought copies of the F16 and F17 that were lodged with the Agreement. The Fair Work Commission (FWC) has refused to provide United Voice (UV) with a copy of these documents on the basis that United Voice were not appointed as a bargaining representative by any of the employees, nor were they a default bargaining representative in accordance with section 176 of the Act.

[3] United Voice have continued to press for access to the F16 and F17 forms, as well as the right to be heard in relation to the FWC’s deliberations as to the Agreement’s conformity with the provisions of the Act.

[4] A conference was convened with Broadspectrum and United Voice on 8 September 2016 by the FWC as presently constituted. The parties were invited to provide written submissions in relation to the Agreement. Both parties took up that opportunity as per the published Directions.

[5] Broadspectrum advised that they have decided to expand their Australian operations into the Corrective Services and Detention Industries. Whilst they do not currently have any contracts, Broadspectrum employed four people into their Justice Business Unit to assist with its processes. These employees have worked on the necessary policy formation and day to day operating manuals that are necessary inclusions in any tender process. They have also been involved in rostering, staffing and OH&S policy formulation.

[6] Relevantly, these employees (now only three) are currently employed under common law contracts, which are underpinned by the Corrections and Detention (Private Sector) Award 2010 (the Award). They will be covered by the Agreement if it is approved. The employees will fall into the Agreement classification structure as a Prison Escort Transport Officer, a Correctional Officer and a Correctional Supervisor Level 2.


[7] United Voice argued that they have a right to be heard in relation to this application on the basis that they are the principal union in the industry and that they currently have 49 members who are employed by Broadspectrum in off-shore detention facilities that are due to close and that these members may seek to continue their employment with Broadspectrum when they return to Australia.

[8] United Voice submitted that the group of employees covered by the Agreement was not fairly chosen (section 186(3) of the Act) and that the Agreement was not genuinely agreed (section 188 of the Act).

[9] United Voice wants to assist the FWC in performing its functions under Part 2.4 of the Act by being a “proper contradictor” in the proceedings.

[10] Further, United Voice submitted that the FWC has an obligation to apply the principles of natural justice in accordance with section 590 of the Act.

[11] United Voice argued that there is no binding capacity of the Agreement upon Broadspectrum because it only covers employees who are engaged within its JBU. United Voice submitted that if successful in tendering for corrections work, Broadspectrum are not compelled to engage employees from within the JBU. United Voice questions whether this possible outcome is permissible under Part 2.4 of the Act.

[12] United Voice further submitted that the four employees that have been involved in the negotiation and approval of the Agreement were performing work outside of their classifications. The Agreement classification structure is lifted form the Modern Award. United Voice argued that this structure applies to employees who are involved in correctional and detention work – not work associated with putting together operating policies and procedures or tender documents. As such, United Voice contended, this group could not be regarded as being fairly chosen on the basis that they were performing work which is not covered by the Agreement.

[13] Finally, United Voice submitted, albeit briefly, that Broadspectrum has attempted to overcome the provisions of the Act in relation to greenfield agreements. Due to time constraints, United Voice did not expand on this submission.

[14] Broadspectrum submitted that United Voice did not have any “right to be heard” in relation to the current application on the basis that they were not appointed as a bargaining representative by any of the employees nor were they a default bargaining representative of any employee.

[15] Broadspectrum further submitted that a Full Bench of the FWC in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd 1 (Collinsville), has dealt with the majority of the issues raised by United Voice in relation to their submission. Relevantly, the Full Bench held:

[16] Broadspectrum posited that United Voice was simply engaged in a “fishing expedition” to try and find fault with the approval process and quash the Agreement. Broadspectrum referred to the two FWC decisions, as previously constituted, in relation to MGI Piling, the FB decision in CFMEU v MGI Piling and the decision of Roe C in Neptune Asset Integrity Services Pty Ltd, 2 (Neptune) all of which gave reasons as to the limitations on the “right to be heard” or the granting of access to documentation to employee organisations. Broadspectrum submitted that, these decisions reinforce the proposition that the vetting of Enterprise Agreements and the approval process is the role of the FWC – not the trade union movement.

[17] Broadspectrum submitted that if the F16 and F17 were made available to United Voice, then Broadspectrum would have concerns in relation to the privacy of the employees who voted on the Agreement.

[18] Broadspectrum referred to the Fair Work Commission Full Bench decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Manufacturing Workers' Union v Sustaining Works Pty Limited 3 (Sustaining Works) which comprehensively dealt with the issue of “fairly chosen.” The Full bench held:

[19] Broadspectrum argued that United Voice has not been able to provide any evidence of any manipulation of the employees or the process.

[20] Broadspectrum submitted that the four employees who participated in the approval process are all covered by the Agreement and are performing bona fide correctional industry work within the classifications of the Agreement. Broadspectrum referred to the Full Bench decision in Transport Workers Union of Australia & Anor v ALDI Foods Pty Limited as General Partner of ALDI Stores(A Limited Partnership) 4(Aldi) where it was held:

[21] Broadspectrum further submitted that the three on-going employees (one has resigned due to family issues) all possess relevant certificate III and IV qualifications and substantial experience in the industry.

Statutory Provisions

[22] The relevant provisions of the Fair Work Act, 2009 (the Act) pertaining to these applications are contained in Part 2.4 – Enterprise Agreements. The following sections are of significance;

Requirement that the group of employees covered by the agreement is fairly chosen


[23] I have taken into account all of the submissions that the parties have provided to the FWC.

[24] Relevantly, a recent Full Bench decision in Construction Forestry Mining and Energy Union v Sparta Mining Services Pty Ltd 5 (Sparta), made the following comments:

[25] In an attempt to further clarify the on-going employment status of the three remaining employees, in accordance with the principles outlined in Neptune and the comments of the Full Bench in Sparta, my Associate sent the following email to Broadspectrum:

[26] Mr Dixon responded in the following terms:

Hi Stevie,

[27] Relevantly, Clause 17 of the Agreement 6 deals with the Classifications Structure and Minimum Wages. Clause 17.2 states:

[28] Having reviewed the classification structures of the two mentioned Awards, I am satisfied that the work currently being performed by these employees falls within the scope of the Corrections and Detentions (Private Sector) Award 2010 classification descriptors and competencies. Broadspectrum should be congratulated for seeking the input and assistance of experienced award based employees into the operational and safety policies of its business unit. In a different circumstance, I am confident that United Voice would also be supportive of this approach.

[29] I agree with the submission from Broadspectrum that the majority of the contentions of United Voice have been dealt with by a Full Bench of the FWC in Collinsville. I support these findings.

[30] I am satisfied and find that the employees continue to work in accordance with their skills, competence and training. I am satisfied that there were only four relevant employees of the JDU at the time of the making of the Agreement. I am satisfied that the employment of these employees and their on-going functions are bona fide operations of the JDU inside Broadspectrum. In accordance with the obiter in Sustaining Works, I find that the employees were “fairly chosen”.

[31] Whilst I accept that United Voice feels aggrieved and believes that Broadspectrum is attempting to undercut what it regards as an appropriate minimum standard for the Corrections Industry in a manner which it regards to be superficial, I can find no evidence where there is any suggestion that Broadspectrum has acted in a manner which may be regarded as coercive, manipulative or in breach of the Act.

[32] I am satisfied that all of the relevant steps and processes that emanate from section 188 of the Act have been complied with and met by Broadspectrum. Taking into account the facts and the decision in Sparta, I can find no evidence to suggest that the approval process for this Agreement, including the employment of the four employees, could be regarded as being a “sham” or not authentic.

[33] As a result, I find that the Agreement was genuinely agreed in accordance with section 188 of the Act.

[34] I can see no benefit in making the F16 and F17 available to United Voice. In accordance with section 590 of the Act, I formally deny that request. It is not appropriate to allow United Voice to undertake some form of forensic investigation into the approval process of the Agreement in the hope of finding a procedural error. That is the role of the FWC. It is a function that cannot be “contracted out” to United Voice or any other employer or employee association. I accept that access to this type of information is appropriately determined on a case by case basis and that each case must be determined on its merits. In this matter, I can see no useful purpose.

[35] I find that Broadspectrum has complied with all of the pre-approval requirements of the Fair Work Act, 2009 (the Act).

[36] A separate decision will be issued approving the JBU Agreement 2016.


 1   [2014] FWCFB 7940

 2   [2016] FWC 121

 3   [2015] FWCFB 4422

 4   [2016] FWCFB 91

 5   [2016] FWCFB 7057

 6   JBU Enterprise Agreement 2016

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