Bis Industries - [2019] FWCFB 8591

[2019] FWC 4184 [Note: This decision has been quashed - refer to Full Bench decision dated 23 December 2019 [2019] FWCFB 8591]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bis Industries

(AG2019/261)

Deputy President Beaumont

PERTH, 5 JULY 2019

Application for approval of the Bis Enterprise Agreement 2018 – s 590 – whether the CFMMEU has a right to be heard – not a bargaining representative – no right to be heard – procedural fairness – when does procedural fairness dictate a party has a right to be heard when not a bargaining representative

An application has been made for approval of an enterprise agreement known as the Bis Enterprise Agreement 2018 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act) by Bis Industries (Bis). The Agreement is a single enterprise agreement.

The Mining and Energy Division of the Construction, Forestry, Maritime, Mining, and Energy Union (the Union) applied to the Fair Work Commission (the Commission) to be heard concerning the application. The basis for its application was that:

a)on the proper interpretation of the Agreement, it was a bargaining representative for the Agreement and therefore it had a right to be heard;
b)as a matter of procedural fairness, it had a right to be heard in accordance with:
i.the Full Bench decision in Construction, Forestry, Mining and Energy Union vCollinsville Coal Operations Pty Limited (Collinsville);[1] or

ii.the test established in Minister for Immigration v WZARH (WZARH);[2]

c)it was positioned to assist the Commission with the exercise of its statutory task, and the Commission ought, therefore, exercise its discretion under s 590 of the Act.

One of the pressing controversies between the parties was whether the Union was a default bargaining representative and therefore had a right to be heard. Clause 2 of the Agreement expressly excluded ‘Field Service Technicians’ from the Agreement’s coverage. The Union contended that at least one of its members was employed as an underground diesel fitter and as such was not, for the purpose of the Agreement, a Field Service Technician.

Accordingly, the Union stated that the member was an employee who will be covered by the Agreement for the purpose of s 176(b). As a member of the Union at the relevant time, and in the absence of the appointment of some other bargaining representative under s 176(c), the Union submitted it was the bargaining representative for the underground diesel fitter in relation to the Agreement.

However, having heard the evidence of the parties and having taken into consideration the submissions of both, I have concluded that the underground diesel fitter falls within the classification of Field Service Technician and therefore is not covered by the Agreement. It follows that the Union was not the default bargaining representative at the relevant time.

Thereafter the Union pressed that by way of procedural fairness its interest in the matter…

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

Case: [2019] FWCFB 8591
Decision Date: 5 JULY 2019

CaseChat Overview and Summary

In this case, Bis Industries sought approval for the Bis Enterprise Agreement 2018 under section 590 of the Fair Work Act 2009. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) contested the application, claiming it had a right to be heard. The CFMMEU was not a registered bargaining representative for the employees involved, which led to the question of whether procedural fairness mandated that the union be heard in the proceedings.

The primary legal issue the court addressed was whether the CFMMEU had a right to be heard in the application for approval of the enterprise agreement, despite not being a registered bargaining representative. The court examined the circumstances under which procedural fairness might require the union to be heard, even in the absence of a formal bargaining representative status. The court considered whether the union's interest in the matter and its representation of the employees were sufficient to trigger procedural fairness obligations.

The court concluded that procedural fairness did not dictate that the CFMMEU had a right to be heard in the proceedings. The court found that the union was not a bargaining representative for the employees in question, and therefore, procedural fairness did not necessitate their involvement. The court emphasised that the absence of a formal bargaining representative status did not automatically entitle the union to participate in the approval process. Consequently, the application for approval of the Bis Enterprise Agreement 2018 was approved.

The final orders of the court were that the application for approval of the Bis Enterprise Agreement 2018 be granted, and the CFMMEU’s claim that it had a right to be heard was dismissed. The decision underscored the importance of formal bargaining representative status in determining procedural fairness rights in such proceedings.

Orders