Application by Boom Logistics Projects Pty Ltd
[2025] FWC 684
•7 MARCH 2025
| [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 of that claim. The CFMEU provided such submissions on 5 February 2025 and I invited the Applicant to provide submissions in reply by 13 February 2025. Such submissions were received from the Applicant by that deadline. I had also asked the parties their view on whether the matter of the CFMEU being heard could be decided on the papers. On 14 February 2025 the CFMEU indicated that they wished the matter to proceed to a hearing.
Given this, I resolved to conduct a short conference between the parties to determine if an alternative to a hearing could be agreed. That conference was adjourned to meet the availability of the Applicant’s representative but was subsequently held on 28 February 2025. At conference, the parties agreed to amend their submissions on permission to be heard. Essentially, the CFMEU withdrew its submissions regarding certain interactions between its officials and representatives of the Applicant. In response, the Applicant withdrew its submissions on the same issue and also the two witness statements it had filed dealing with those interactions. The parties then agreed that the matter would be heard on the papers based on their modified submissions.
Submissions
The CFMEU submitted that the FWC had discretion to allow employee organisations to be heard in relation to the approval of an agreement, citing the decisions of the Full Benches in CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940 (Collinsville) at [75] and AWU v Job Connect Recruitment Pty Ltd [2019] FWCFB 5132 at [16]. Those decisions affirmed that the FWC’s power under s.590(1) is broad in scope and that the FWC can allow employee organisations a right to be heard in circumstances where they otherwise would not have such a right.
The CFMEU further cited the findings of Commissioner Cambridge in Inco Ships Pty Ltd v AIMPE [2016] FWC 1637 at [25] and Deputy President Binet in Neptune Diving Services v MUA [2017] FWC 5955 (Neptune) at [30]. In those matters, the FWC members noted that the scrutiny arising from an employee organisation acting as a contradictor can assist the FWC to properly fulfill its statutory function of assessing agreements. The CFMEU further noted the comment of Deputy President Binet in Neptune at [23] as follows:
“(the union) can provide a perspective independent of the author and proponent of the Proposed Agreement, who have a commercial interest in the Proposed Agreement being registered.”
The CFMEU then outlined its own role within the industries covered by the awards underpinning the Agreement, being the Building and Construction General On-site Award 2020 and the Mobile Crane Hiring Award 2020. It observed that it represented the industrial interests of employees covered by those awards and had a long-standing role in the determination and improvement of conditions in the industries covered by those awards. The CFMEU further submitted that it has members employed by the Applicant who would be covered by the Agreement and had been a default bargaining representative prior to those members appointing alternative representatives. Given all of the above, the CFMEU submitted that I should exercise my discretion under s.590(1) to allow it to be heard.
The Applicant submitted that the CFMEU should not be heard. It noted that in exercising discretion under s.590(1) the FWC was nonetheless required to act in a manner consistent with s.577. The Applicant submitted that the requirements of that section to act in a manner that is fair, just, informal and avoids unnecessary technicalities supports the position that the CFMEU should not be part of proceedings.
The Applicant further submitted that the statutory bargaining framework was a compelling discretionary consideration that had been relied upon in previous decisions which had found against an employee organisation being heard in circumstances where it was not a bargaining agent. It cited the findings of Commissioner Riordan in MGI Piling (NSW) Pty Ltd and Ors [2015] FWC 7345 at [19] – [20] where the Commissioner refused permission for the CFMEU to be heard and the decision of Senior Deputy President Harrison at first instance in Collinsville Coal Operations Pty Ltd [2014] FWC 5628 at [72]-[80]. In the latter case the Senior Deputy President’s decision to limit the CFMEU’s capacity to be heard was affirmed by the Full Bench in Collinsville.
The Applicant also directed my attention to the findings of Deputy President Anderson in e2o Pty Ltd [2019] FWC 1145 at [14] and [20]. In that decision, the Deputy President noted that while the CEPU had a direct interest in the industry and the occupations and persons covered, this did not of itself provide sufficient grounds for the union to be heard where it had no direct or historic connection with bargaining in the particular enterprise. The Deputy President also found that the FWC had tools at its disposal to determine issues such as compliance with the Better Off Overall Test and the requirements of approval without a contradictor.
In further submissions opposing permission, the Applicant noted that the CFMEU was not a bargaining representative for the Agreement, nor was it covered by the previous agreement applying to the Applicant. Further, there was high turnout of voters and substantial support for the Agreement as evidenced by the result of the vote. It also submitted the CFMEU’s concerns regarding approval requirements such as genuine agreement were problematic given the CFMEU had had no involvement in or presence during the rollout process. Given this, the Applicant submitted that the FWC did not need the CFMEU as it could make its own inquiries.
Consideration
It is clear from the case findings that the discretion in s.590(1) of the Act is broad enough to allow me to hear from the CFMEU regarding approval of the Agreement if the circumstances warrant permission being granted. Clearly, it will not always be the case that it is appropriate to grant permission when the union concerned is not a bargaining representative and therefore without the right to be heard in relation to approval of an agreement. However, in this instance I have decided to exercise my discretion to allow the CFMEU to be heard, for the reasons that follow.
In the first instance, I note the findings of Deputy President Binet as set out at [8] above. The Applicant in this matter clearly has a vested commercial interest in the Agreement being approved. There is nothing wrong with that. However, I am mindful that in approving an agreement, the FWC is not just confirming the entitlements of the various parties, but also ensuring that other rights, such as the ability to seek improvements to wages and conditions and to take protected industrial action to achieve such improvements, are extinguished, at least during the life of the agreement. It is therefore an important function of the FWC to ensure that agreements – and the processes used to secure them – are properly scrutinised.
On some occasions, flaws in the agreement-making process come to light as a result of the FWC’s own scrutiny. At other times, those flaws are only exposed by a union acting as contradictor. I note two examples. In his decision in the matter of Rls (WA) Pty Ltd t/a Rigsafe WA [2025] FWC 448 Deputy President Slevin found that the employer had misled employees about their representational rights and had not provided the Notice of Employee Representational Rights (NERR) as required by the Act. The Deputy President refused approval of the Agreement in that case.
In the material submitted by Rigsafe in support of the agreement approval application, there was no suggestion that there had been anything untoward with respect to the NERR or any misinformation provided by the employer. Rather, the CFMEU – who were not a bargaining agent – were able to direct the FWC’s attention to evidence that demonstrated that an improper process had been used. Had the CFMEU not sought to intervene, it is likely that the FWC would not have discovered that the agreement had not been genuinely agreed.
The other decision I note is the Full Bench decision in Appeal by The Australian Workers’ Union [2023] FWCFB 157. In that case, it emerged some significant time after approval that the Workforce Logistics Pty Ltd Enterprise Agreement 2022 had been approved in circumstances where the applicant employer had not met the requirements of the Act for approval and had misled the FWC. In its decision the Full Bench noted as follows at [89]:
“First, it should be clear that, although we have found appealable error in the Deputy President’s decision, we have only done so on the basis of the new evidence adduced in the appeal, which disclosed the true picture concerning the circumstances in which the Agreement was made. Not only did the Deputy President not have the benefit of this evidence but he was also, we consider, misled by the contents of the Form F17 declaration which accompanied the application for approval of the Agreement and the lack of candour on the part of Workforce Logistics in prosecuting its application.”
Once again, the flaws in the process were not disclosed by the applicant or discovered by the FWC. Rather, it was the intervention of – in this case – the AWU that revealed that the FWC had been deliberately misled.
I should hasten to add that I am not suggesting that there has been anything improper done by the Applicant in this matter. However, I am inclined to err on the side of caution. In approving an agreement, I must be satisfied that all of the preconditions for approval have been properly observed. Having a contradictor - in this case being a union with a sizeable membership in the Applicant’s employ - will in my view assist me in reaching that state of satisfaction.
On that basis, I have decided to exercise my discretion to allow the CFMEU to be heard. I should make another observation. It is clear from the decision of the Full Bench in Collinsville that a union may be covered by an agreement if it was a bargaining agent, even if it was not a bargaining agent at the time the agreement was made.[1] The notification time for the Agreement was 30 August 2024. Based on the material provided to the FWC as outlined in [4] above, it is clear that the CFMEU’s members appointed their own bargaining agents on a number of different dates subsequent to 30 August 2024.
As such, the CFMEU remained a default bargaining representative for those members until they appointed an alternative bargaining representative. However, as the CFMEU has indicated in its Form F18 that it does not wish to be covered by the Agreement then should the Agreement be approved the CFMEU will not be noted as an organisation covered by the Agreement.
DEPUTY PRESIDENT
[1] See Collinsville at [28]-[37]
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