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

(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…

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.

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Details

AGLC: Ausdrill Limited [2018] FWC 444
Case: [2018] FWC 444
Decision Date: 22 JANUARY 2018

CaseChat Overview and Summary

Ausdrill Limited applied to the Fair Work Commission for approval of a single-enterprise agreement. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to be heard in relation to the application, asserting that it had standing as a relevant union for the purposes of the Fair Work Act 2009. The central issue before the Commission was whether the CFMEU had standing to be heard on the application for approval of the agreement, given that it had not been nominated by any employees as the relevant union for the purposes of the application.

The Commission considered the provisions of the Fair Work Act and relevant case law to determine the CFMEU's standing. It was established that the CFMEU had been recognised as a relevant union for the employees in question in a previous enterprise agreement. This recognition granted the union standing to be heard on the application for approval of the new agreement. The Commission also noted that the CFMEU had not been disendorsed as the relevant union for these employees, further supporting its standing. Consequently, the Commission determined that the CFMEU had the requisite standing to be heard on the application for approval of the single-enterprise agreement.

The Commission approved the single-enterprise agreement, taking into account the submissions made by the CFMEU and other relevant parties. The CFMEU's standing to be heard was integral to the decision-making process, ensuring that the interests of the employees were properly represented and considered. The final orders of the Commission included the approval of the single-enterprise agreement, subject to the terms and conditions set out in the agreement. The CFMEU's standing to be heard played a critical role in the outcome, underscoring the importance of proper union representation in enterprise bargaining processes.

Orders