Ausdrill Limited

[2018] FWC 444

[2018] FWC 444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ausdrill Limited
(AG2017/3933)

DEPUTY PRESIDENT MASSON MELBOURNE, 22 JANUARY 2018

Application for approval of a single-enterprise agreement – standing of union to be heard in relation to Application.

[1] On 31 August 2017, Ausdrill Limited (Ausdrill) filed an application (Application) with the Fair Work Commission (FWC) pursuant to s 185 of the Fair Work Act 2009 (Cth) (FW Act) for the approval of the Ausdrill Limited Mining Enterprise Agreement 2017 (Proposed Agreement).

[2] On 11 August 2017, the FWC received correspondence from the Construction, Forestry, Mining and Energy Union (CFMEU) advising of its interest in this matter, and requesting a copy of the Form F1 and Form F17 filed by Ausdrill. The CFMEU were subsequently provided with these documents on 27 November 2017.

[3] On 30 November 2017, the CFMEU advised the FWC that it was not a bargaining representative but that it sought to be heard in relation to the Application.

[4] In correspondence to the FWC on 30 November 2017, the Australian Mines and Metals Association (AMMA), on behalf of Ausdrill, objected to the CFMEU’s request to be heard but urged the FWC to deal with the request expeditiously if it were minded to allow the CFMEU to make submissions on their request to be heard.

[5] Following a Mention/Directions Hearing on 7 December 2017, the parties were issued with Directions which required Ausdrill and the CFMEU to file materials and submissions in respect of the CFMEU’s standing to be heard in relation to the Proposed Agreement. The CFMEU filed its submissions on 14 December 2017 in accordance with the Directions. AMMA on behalf of Ausdrill filed its submissions on 21 December 2017 in accordance with the Directions.

Consideration

[6] There are four potential avenues by which an employee organisation might establish standing to be heard in relation to an application for approval of an proposed agreement:

(a) As a bargaining representative of one or more employees to be bound by the proposed agreement; 1

(b) As a matter of procedural fairness if the employee organisation is able to establish a right, interest or legitimate expectation that it will be adversely affected by the decision; 2

(c) If invited by the FWC in the exercise of its power under s 590 of the FW Act to inform itself; 3

(d) On appeal, if the employee organisation can show a grievance, which will be suffered as a result of the decision complained of, beyond that of an ordinary member of the public. 4

[7] The fourth avenue is only available on appeal and not at first instance. The fact that an employee organisation may have a right of appeal against a decision to approve an enterprise agreement does not of itself create a right to be heard in relation to the Application at first instance.

[8] The CFMEU conceded that they did not have any members employed by Ausdrill involved in the making of the Agreement and acknowledged that they did not have standing to appear as of right. The CFMEU contended however that they should be heard by virtue of s 590 of the FW Act.

Invited to be Heard Pursuant to Section 590 of the FW Act

[9] The avenue by which the CFMEU contend that it should be heard in relation to the approval of the Proposed Agreement is via s 590 of the FW Act. The FWC may, in the exercise of its powers under s 590 of the FW Act, choose to hear from an employee organisation about the approval of an agreement even though the employee organisation may not otherwise have a right to be heard. 5

[10] Section 590 of the FW Act confers on the FWC a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including (but not limited to) by inviting oral or written submissions from a person or organisation; by taking evidence under oath or affirmation; and by requiring a person to provide copies of documents or records. 6

[11] The CFMEU have a long history of industrial representation in the black coal industry and the industrial right to represent Ausdrill employees who would be covered by the Proposed Agreement. As a consequence, they have a high degree of familiarity with the reference award, the work arrangements in the black coal industry, and enterprise agreement terms and conditions similar to those contained in the Proposed Agreement. The CFMEU can provide a perspective independent of proponent of the Proposed Agreement (Ausdrill).

[12] The CFMEU has identified potential issues in relation to whether the Proposed Agreement was genuinely agreed, whether the Proposed Agreement passes the BOOT, whether the Proposed Agreement is consistent with the National Employment Standards (NES) and whether the Proposed Agreement contains unlawful terms.

[13] I am satisfied that the CFMEU may provide information relevant to my deliberations as to whether the BOOT is satisfied, whether the NES has been complied with, whether any of the terms are unlawful, whether any undertakings are appropriate, and whether the Proposed Agreement was genuinely agreed.

[14] By permitting the CFMEU to make submissions, lead any evidence which it does have and to cross-examine witnesses, the FWC can properly inform itself in relation to the matters which have been raised and satisfy itself that the requirements for the approval of the Proposed Agreement have been fully met. If, as Ausdrill assert, the CFMEU’s concerns are without merit then this will be established by Ausdrill in the Commission’s consideration of this Application.

[15] The FWC is required to ensure that the Proposed Agreement complies with the Act and the resolution of the concerns which have been identified should be conducted with transparency and appropriate rigor:

“Employee organizations with a legitimate interest in the industry and occupations covered by the Agreement may assist in the resolution of these issues of concern. In this way, a process involving open, diligent and comprehensive scrutiny should provide for the correct outcome, and also enhance the broader confidence in the Commissions enterprise agreement approval role.” 7

[16] In the particular circumstances of this matter, I am therefore satisfied that the CFMEU has established a basis upon which it should be invited to be heard. Thus, the CFMEU shall be entitled to be heard in respect to the application.

[17] The FWC will now proceed to consider the application based on the submissions and materials filed by the parties pursuant to the Directions previously issued.

DEPUTY PRESIDENT

 1 Section 176(1) Fair Work Act 2009 (Cth) and Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [16].

 2   CFMEU v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at [72].

 3  Ibid at [48] and [75].

 4   Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64; CEPU andAMWU v Main People Pty Ltd[2014] FWCFB 8429; Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at footnote 13; and Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’ Union[2016] FWCFB 3370 at [15].

 5   CFMEU v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at [75].

 6 Section 590, Fair Work Act 2009 (Cth).

 7   Inco Ships Pty Ltd[2016] FWC 1637 at [25].

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