[2016] FWCFB 8413


Fair Work Act 2009

s.604—Appeal of decision

Construction, Forestry, Mining and Energy Union
Ron Southon Pty Ltd



Appeal against decision [2016] FWCA 6773 of Commissioner Cirkovic at Sydney on 20 September 2016 in matter number AG2016/3985 – the principle of open justice – access of non-parties to documents – requirement to provide reasons – maximum weekly hours – permission to appeal granted – appeal upheld – decision below quashed – matter below remitted.

Factual background

[1] On 21 July 2016, Ron Southon Pty Ltd (the respondent, the company) applied to the Fair Work Commission (the Commission) for approval of an enterprise agreement to be known as the Ron Southon Pty Ltd Enterprise Agreement 2016-2020 (the enterprise agreement).

[2] On 22 July 2016, Thomas Fischer, a Legal/Industrial Officer of the Construction, Forestry, Mining and Energy Union, Construction and General Division, New South Wales Branch (the appellant, the CFMEU) sent an email to the generic email address of the Commission, objecting to ‘the certification’ of the enterprise agreement. The email added:

[3] On 25 July 2016, Fiona Tucker, the Team Leader of the Commission’s Member Support Research Team, responded to Mr Fischer as follows:

[4] Mr Fischer responded on 29 July 2016 as follows:

[5] On 30 August 2016, Mr Fischer received a reply to his email from Grant Ellis, Members Support Research Team.

[6] Mr Fischer responded to Mr Ellis by email on 1 September 2016. Mr Fischer said that the CFMEU did not have any members employed by the company at the current time. However, he respectfully urged the Commissioner to hear the CFMEU in the matter for the reasons outlined in his email of 29 July 2016.

[7] Mr Fischer then said if the Commissioner would not hear the CFMEU in the matter, they respectfully wished to put forward some information that the Commissioner might choose to consider when assessing the enterprise agreement. The email then listed a number of provisions of the enterprise agreement which Mr Fisher said the CFMEU did not believe were compliant with the Fair Work Act 2009 (the FW Act). Their concerns related, inter alia, to a potential inconsistency with the National Employment Standards (NES), and to whether the employees under the agreement would be better off overall compared to the award.

[8] Mr Ellis responded to Mr Fischer indicating that he would provide the email to the Commissioner for her consideration and added that he was instructed to forward a copy to the employer for their information.

[9] The enterprise agreement was approved by Commissioner Cirkovic on 20 September 2016, with undertakings. This was confirmed by Mr Ellis in response to a query by Mr Fischer on 22 September 2016.

[10] Mr Fischer then sent an email to Mr Ellis asking whether there was any correspondence from the Commissioner on the CFMEU’s application to be heard in the matter.

[11] Mr Ellis responded:

[12] Mr Fischer then wrote:

[13] Mr Fischer received a reply from Commissioner Cirkovic’s associate indicating that the Commissioner had considered the matters raised in his correspondence, and the file had been closed.

Notice of Appeal

[14] On 7 October 2016, the CFMEU applied to the Commission to appeal the decision of Commissioner Cirkovic approving the enterprise agreement. The grounds of appeal were subsequently amended on 2 November 2016. There were ultimately seven grounds of appeal:

Nature of Appeal

[15] An appeal of a decision is not as of right and permission to appeal must first be obtained. 1 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.2 The public interest is not satisfied simply by the identification of error, or a preference for a different result.3 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of Fair Work Australia (FWA) identified some of the considerations that may attract the public interest:

[16] 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 permission is refused. 5


[17] The grounds of appeal can be grouped into three: those concerning the failure of the Commissioner to give any reasons for her (implied) decision not to allow the appellant to be heard on the company’s application to have the enterprise agreement approved (grounds 1 and 2); those concerning the Commissioner’s decision not to give the appellant access to the company’s application to have the enterprise agreement approved together with the accompanying material, nor to provide any reasons for that decision (grounds 3, 4 and 5); and those concerning the Commissioner’s decision to approve the enterprise agreement in the light of its alleged failure to meet two of the requisite statutory tests (grounds 6 and 7).

[18] The Full Bench, in Collinsville 6 dealt at some length with the rights of employee organisations in relation to enterprise agreements for which they are not bargaining representatives. The relevant extracts of the decision are as follows:

Failure to provide access to documents

[19] The appellant submitted that:

[20] There has been a diversity of decisions by members of the Commission concerning the appropriateness of providing organisations that are not bargaining representatives with copies of the forms F16 8 and F179 that are lodged in support of the approval of an enterprise agreement. For example, Riordan C said in Broadspectrum:

[21] Lawrence DP, by contrast said in another decision concerning the approval of an enterprise agreement:

[22] We think it is appropriate that this Full Bench provide guidance on this issue.

[23] The application of the principle of open justice to the proceedings of the Commission was considered in Corfield. In that decision, Bissett C said the following:

[24] In ACCC v ABB Transmission, Finkelstein J considered the issue of granting non-parties access to written evidence or documents. He noted the trend in civil litigation to the increased use of written documents:

[25] Justice Finkelstein went on to consider what principles should be applied when deciding whether to allow a non-party access to material which has been relied on by a judge:

[26] Partly in the interests of efficiency and partly to reduce the administrative burden on the parties, an increasing amount of the work of the Commission is undertaken ‘in Chambers’ rather than in open court, and decisions are often made ‘on the papers’. This development should not have the unintended result that the activities of the Commission become shielded from the public gaze.

[27] Completed Forms F16 and F17 provide important information on which the Commission relies in determining whether to approve enterprise agreements. The Commission and its predecessors have had a longstanding practice that in the absence of special circumstances or an order to the contrary, Commission files are open to the public.

[28] Completed Forms F16 and F17 should be treated as documents that are freely available to any member of the public who wishes to see them, unless there are exceptional circumstances that would justify an order of confidentiality. We are satisfied that no such exceptional circumstances exist in the matter before us, and the Commissioner was in error in declining to provide the appellant with the documents sought.

Failure to give reasons

[29] The Commissioner did not publish any reasons at all for her (implicit) decision not to accede to the CFMEU’s application to be heard concerning whether the enterprise agreement should be approved.

[30] A FWA Full Bench in Barach set out the general position about the nature of the obligation to give adequate reasons for decision:

[31] A subsequent FWA Full Bench indicated that this statement of principle requires some elaboration:

[32] The passage in Tatmar cited by the Full Bench noted that in some cases there may not be a need for reasons, for example, in certain procedural applications:

[33] The FW Act gives some guidance on the issue of when written reasons for decision are required. Part 5-1 is headed ‘The Fair Work Commission’. Division 3 of Part 5-1 deals with the conduct of matters before the Commission. This includes (in Subdivision A) s.590 which provides the power of the Commission to inform itself in relation to any matter before it in such manner as it considers appropriate, 18 including by inviting, subject to any terms and conditions it determines, oral or written submissions.19 Subdivision D of Part 5-1 is headed ‘Decisions of the FWC’. Section 601 in that Subdivision relevantly provides as follows:

[34] The explanatory memorandum says in relation to what is now s.601(2) of the FW Act:

[35] Particularly given the clear statement of law in Collinsville, and the concession by the CFMEU that it was not a bargaining representative for the enterprise agreement, there is nothing to suggest that the CFMEU was asserting any right to be heard in relation to the approval of the enterprise agreement. Rather, its application to be heard can only be understood as a request that the Commission exercise its discretion to hear from the CFMEU even though the CFMEU did not otherwise have a right to be heard. This would clearly be a decision pursuant to s.590, which falls within Part 5-1 of the FW Act. Such decisions are excluded from the requirement for written decisions contained in s.601. Moreover, such decisions are best described as procedural. As the explanatory memorandum indicates, written reasons may not be necessary in regard to procedural decisions.

[36] We think the Commissioner was not required to issue reasons for her decision not to hear from the CFMEU about the approval of the agreement. Having said that, we do consider that it would have been preferable for the Commissioner to have briefly set out her reasons. This would have made it clear to the CFMEU (and any other observer) why she did not think it appropriate or desirable to hear from them.

Does the enterprise agreement contain terms that contravene s.55?

[37] The appellant submitted that the enterprise agreement cannot be approved because its terms contravene s.55 of the FW Act.

[38] Section 55 of the FW Act relevantly provides:

[39] Sections 62 and 63 of the FW Act provide as follows:

[40] Clause 7.1.1 of the enterprise agreement, as submitted to the Commission, provided that:

[41] The company provided an undertaking to the Commission in the following terms:

[42] The CFMEU submitted that:

[43] The CFMEU referred to the decision of the Full Bench in Aldi Foods, which dealt with an application to approve three enterprise agreements with ordinary hours in excess of 38 per week. The Full Bench stated:

[44] The respondent submitted that s.55(2) of the FW Act provides that an enterprise agreement may include any terms that the award or agreement is expressly permitted to include by a provision of Part 2-2 (which deals with the NES). Section 63 directly contemplates ordinary hours being established through an enterprise agreement, including through an averaging process. Section 63(2) expressly provides that the terms of an enterprise agreement may provide for average weekly hours that exceed 38 hours across a specified period if the excess hours are reasonable for the purposes of subsection 62(1).

[45] We agree with the respondent that the mere fact that an enterprise agreement provides for an average of ordinary hours above 38 per week does not ipso facto mean that it cannot be approved. However, consistent with the decision in Aldi, to the extent that any employee who has contracted to work in excess of 38 hours in a week is then unable to alter that arrangement to meet a particular personal circumstance, the agreement would be inconsistent with the NES. We note that this is a matter that could probably be resolved through an appropriate undertaking.

[46] Accordingly, we are satisfied that the enterprise agreement should not have been approved because its terms contravene s.55 of the FW Act.

[47] Given our finding on this matter, it is unnecessary to consider the other grounds on which the appellant submitted that the enterprise agreement failed to meet the statutory tests for approval.


[48] This matter raises significant issues that have broad application to the manner in which the Commission deals with applications to approve enterprise agreements. Accordingly, we consider permission to appeal should be granted. Given the errors we have identified, we uphold the appeal, and quash the decision to approve the enterprise agreement. We will remit the application for approval of the enterprise agreement to Commissioner Bissett.

tle: seal - Description: Seal of the Fair Work Commission with Member's signature.



R Reitano of counsel with S Hayward for the Construction, Forestry, Mining and Energy Union.

A Britt of counsel with R Grace for Ron Southon Pty Ltd.

Hearing details:



November 23.

 1   Fair Work Act 2009 (Cth) s.604(1).

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

 3   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 [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; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

 4   [2010] FWAFB 5343 [27].

 5   See also CFMEU v AIRC (1998) 89 FCR 200; Wan v AIRC (2001) 116 FCR 481.

 6   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940.

 7   PN15.

 8   Application for approval of an enterprise agreement.

 9   Employer’s statutory declaration in support of an application for approval of an enterprise agreement.

 10   Broadspectrum (Australia) Pty Ltd T/A Broadspectrum [2016] FWC 7936 [34].

 11   Application for approval of the Telum Contract Labour Pty Ltd/AWU WestConnex Project Civil Construction Greenfields Agreement 2016 [2016] FWC 8161 [35].

 12   Justin Corfield [2014] FWC 4887.

 13   Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited No.3 [202] FCA 609.

 14   Ibid [7].

 15   Barach v University of New South Wales [2010] FWAFB 3307 [16].

 16   Transport Workers’ Union of Australia v WA Freightlines Pty Ltd [2011] FWAFB 3863 [10].

 17   Housing Commission of New South Wales v Tatmar Pastoral Co. Ltd. [1983] 3 NSWLR 378, 386C per Mahoney JA.

 18   Fair Work Act 2009 (Cth) s.590(1).

 19   Fair Work Act 2009 (Cth) s.590(2)(b).

 20   Appellant’s outline of submissions [28].

 21   ALDI Foods Pty Ltd v Transport Workers’ Union of Australia (2012) 227 IR 120 [41]-[42].

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