Application by Boom Logistics Projects Pty Ltd - [2025] FWC 684

[2025] FWC 684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of an agreement

Application by Boom Logistics Projects Pty Ltd

(AG2024/5192)

DEPUTY PRESIDENT O'KEEFFE

PERTH, 7 MARCH 2025

CFMEU seeking permission to be heard on approval of an agreement – CFMEU not a bargaining representative – permission to be heard granted.

On 20 December 2024 Boom Logistics Projects Pty Ltd (Applicant) made an application to the Fair Work Commission (FWC) under s.185 of the Fair Work Act 2009 (Cth) (the Act) for approval of the Boom Logistics Projects Pty Ltd Enterprise Agreement 2025-2029 (the Agreement).

On 15 January 2025 the CFMEU contacted the FWC seeking a copy of the application and a redacted copy was provided on 16 January 2025. On 23 January 2025 the CFMEU lodged a Form F18 with the FWC wherein a number of issues of concern regarding the Agreement were raised. In response to the Form F18 I caused the following email to be sent to parties on 23 January 2025:

“Dear Parties,
Deputy President O'Keeffe notes the Form F18 filed by the CFMEU with respect to the above agreement. The matter may now need to progress to hearing to deal with the concerns raised by the CFMEU.
In the first instance, the Deputy President seeks advice from Boom Logistics as to whether it seeks to challenge the CFMEU's standing as a bargaining agent. If so, this matter will need to be resolved before any further progress can be made. However, the Deputy President notes that even if the CFMEU is not a bargaining agent, he still has discretion to allow the CFMEU to be heard with respect to the approval of the Agreement.
Can Boom Logistics please advise Chambers by no later than 4.00pm (AWST) Friday 24th January as to whether it accepts that the CFMEU has standing as a bargaining agent?”

A response was received from the Applicant on 23 January 2025. In that response, the Applicant rejected the notion that the CFMEU were a bargaining agent and proposed that the CFMEU advise which employees it claimed to represent. The Applicant claimed that all employees had nominated other bargaining representatives, being a group of employees of the Applicant.

To preserve anonymity, I directed the CFMEU to send me a list of its members employed by the Applicant and I directed the Applicant to send me a list of its employees covered by the proposed Agreement and any instruments of appointment of bargaining agents. Both parties complied by 30 January 2025 and on 31 January 2025 I advised the parties that I had examined both lists and could confirm that all of the CFMEU’s members had appointed another person to represent them in bargaining. As such, the CFMEU was not a bargaining representative for the Agreement.

As part of my correspondence, I asked the CFMEU to confirm by 5 February 2025 if it wished to press its claim to be heard and, if so, to provide submissions in support…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Boom Logistics Projects Pty Ltd

Details

AGLC: Application by Boom Logistics Projects Pty Ltd [2025] FWC 684
Case: [2025] FWC 684
Decision Date: 7 MARCH 2025

CaseChat Overview and Summary

In the case of Application by Boom Logistics Projects Pty Ltd, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to be heard on the approval of an agreement concerning enterprise bargaining. The CFMEU, which was not a certified bargaining representative for the employees in question, applied for leave to intervene in the proceedings. The matter was heard in the Fair Work Commission. The primary legal issue for the Commission to address was whether the CFMEU, as a non-bargaining representative union, had sufficient grounds to be heard on the approval of the enterprise agreement. The Commission had to consider the implications of the CFMEU's standing and the potential impact of its intervention on the process of approving the agreement.

The Fair Work Commission deliberated on the standing of the CFMEU and its interest in the outcome of the enterprise agreement approval process. It assessed whether the CFMEU had a legitimate concern that warranted its involvement and whether its intervention would serve the interests of justice. The Commission found that the CFMEU did indeed have a legitimate interest in the matter, as it concerned broader issues of industrial relations and the welfare of its members, even if they were not directly represented by the union in the specific bargaining process. Based on this, the Commission granted the CFMEU leave to be heard on the approval of the agreement, recognising the union's significant stake in the outcome.

The decision to grant permission for the CFMEU to be heard underscores the importance of considering the broader industrial relations context and the interests of unions, even when they are not direct bargaining agents in a specific agreement. The Commission's reasoning highlights the principle that unions have a legitimate role in advocating for their members' interests within the enterprise bargaining framework. This ruling affirms that non-bargaining representative unions can seek to be heard in matters that affect their members, provided they can demonstrate a substantial interest. The Commission's decision thus allows for a more comprehensive consideration of the implications of the enterprise agreement, ensuring that all relevant stakeholders have an opportunity to contribute to the process.

The final orders of the Commission were that the CFMEU was granted leave to be heard on the approval of the enterprise agreement. This decision enabled the union to present its views and arguments in the proceedings, thereby ensuring that the interests of its members were adequately considered in the final determination of the agreement.

Orders