AWX Labour Pty Ltd T/A AWX Labour Pty Ltd

[2017] FWCA 4821

[2017] FWCA 4821 [Note: This decision has been quashed - refer to Full Bench decision dated 14 November 2017 [2017] FWCFB 5972]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AWX Labour Pty Ltd T/A AWX Labour Pty Ltd
(AG2016/7437)

AWX LABOUR PTY LTD (BLACK COAL MINING) ENTERPRISE AGREEMENT 2016

Coal industry
COMMISSIONER GREGORY	MELBOURNE, 15 SEPTEMBER 2017

Application for approval of the AWX Labour Pty Ltd (Black Coal Mining) Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the AWX Labour Pty Ltd (Black Coal Mining) Enterprise Agreement 2016 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by AWX Labour Pty Ltd (“AWX”). It is a single enterprise Agreement.

[2] Following receipt of the application the Construction, Forestry, Mining and Energy Union, Mining and Energy Division (“the CFMEU”) made contact with the Commission to advise that it wished to be heard in regard to the application pursuant to s.590(1) of the Act. It also provided further submissions in regard to whether the application should be approved. AWX indicated in response that it opposed the CFMEU’s request to be heard, and the matter was accordingly set down for hearing to deal with this issue.

[3] Mr Chris Mossman from Jensen McConaghy Solicitors was given permission to appear on behalf of AWX under s.596(2)(a) of the Act as the matter involved a degree of complexity and his involvement might enable it to be dealt with more efficiently.

[4] The CFMEU sought to be heard after it was provided with a copy of the F16 Application and the F17 Employer’s Statutory Declaration. It acknowledged in doing so that it did not have members employed by AWX, and was not a bargaining representative for the Agreement. It also acknowledged that it did not have a right to appear but sought to be heard under s.590(1), which provides that the Commission “may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.” 1

[5] It also made reference to the Full Bench decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd[2014] FWCFB 7940 (Collinsville) in support of its submission that the Commission has a discretion to inform itself in a manner it considers appropriate. It continued to submit that in this case it could assist the Commission in a positive manner in dealing with the application, given its history and knowledge in dealing with the mining industry, and its involvement in the development of the Modern Award. 2

[6] It also submits that its request to be heard is supported by the fact that the Employer’s Statutory Declaration would appear to indicate that there were no employee bargaining representatives for the Agreement, and it is the first Agreement established by the Applicant in this industry.

[7] AWX opposes the CFMEU being heard on the basis that it only has an indirect interest in the application and, as such, it is not appropriate for the Commission to exercise the discretion available to it under s.590 on this occasion. It also refers to the decision in Collinsville in support of this submission. It also makes reference to the more recent decision in Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd; Bauer Foundations Australia Pty Ltd; Avo Piling Management (NSW) Pty Ltd; Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd[2016] FWCFB 2654 (MGI Piling). It submits that the Full Bench in this decision confirmed its support for the decision in Collinsville. It referred, in particular, to paragraph [31] of the decision when the Full Bench stated:

“[31] Having regard to the framework of enterprise bargaining and agreement making established by the Act and the matters set out in the previous ten paragraphs, we are of the view that the CFMEU is not a person whose rights, interests or legitimate expectations will be directly affected by any decision to approve the new enterprise agreements. Taking the CFMEU’s case at its highest, including the fact that the CFMEU will not have standing, in its own capacity, to sue for a breach of the new enterprise agreements (assuming they are approved), the most that could be fairly said is that the CFMEU may be affected, indirectly or consequentially, by a decision to approve the new enterprise agreements. Such an impact is not sufficient to give the CFMEU a right to be heard in the application for the new enterprise agreements.” 3

[8] It submits, in conclusion, that the Full Bench decisions make clear that it is the Commission’s responsibility to be deciding whether the relevant statutory criteria have been met in regard to an application for approval under s.185 and s.590 of the Act should not be used to frustrate or disrupt the approval process by allowing persons or organisations to be heard in circumstances where they have only an indirect interest in the outcome.

[9] Issues relating to the right to be heard were obviously dealt with at length by the Full Bench in the decision in Collinsville. The Full Bench noted in that matter that it is clear that the Act does not provide for a right of intervention in proceedings before the Commission by a non-party. However, s.590 does provide that the Commission may inform itself in relation to any matter before it in such manner it considers appropriate. It continued to indicate that any right, interest, or legitimate expectation that might give rise to a right to be heard must be identified and understood against the framework of enterprise bargaining and agreement making established by the Act. In this context it noted that agreements are made principally between an employer and the employees, and that enterprise agreements operate primarily at the enterprise level, and do not create rights of general application across an industry.

[10] It continued to make clear that whether a Union, that is not a bargaining representative, has an entitlement to be heard in relation to an application for approval will depend upon the circumstances in each case. The decision in MGI Piling also makes clear that an indirect interest in an application to approve a new enterprise agreement is not sufficient to give an entitlement to be heard.

[11] The CFMEU in the present matter has set out the reasons why it believes it has a right to be heard in regard to the application. I have had regard to those reasons. I have also had regard to the issues raised in regard to the approval of the Agreement, and the responses provided by the Applicant. Having had regard to the decisions in Collinsville and MGI Piling I am not satisfied that the CFMEU should now be given further opportunity to be heard about the application for approval of the Agreement on the basis that it has not identified or disclosed a legitimate reason or ground that would warrant it being heard.

[12] After reviewing the application and the Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought further clarification from AWX about various aspects of the application and the Agreement.

[13] AWX subsequently provided a series of undertakings. A copy of those undertakings is contained in Attachment A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings will now be taken to be a term of the Agreement in accordance with s.191 of the Act.

[14] I am otherwise satisfied that each of the requirements in ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[15] The Agreement is approved and in accordance with s.54 of the Act will operate from 22 September 2017. The nominal expiry date of the agreement is 14 September 2021.

COMMISSIONER

Appearances:

C Mossman for the Applicant.

A Thomas for the Construction, Forestry, Mining and Energy Union

Hearing details:

2017.

Melbourne (by telephone):

May 10.

Attachment A

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

 2   Black Coal Mining Industry Award 2010.

 3   Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd; Bauer Foundations Australia Pty Ltd; Avo Piling Management (NSW) Pty Ltd; Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd[2016] FWCFB 2654 at [31].

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