Bis Industries - [2019] FWCFB 8737

[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…

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 8737
Decision Date: 5 JULY 2019

CaseChat Overview and Summary

The case before the court involved an application by Bis Industries for the approval of the Bis Enterprise Agreement 2018 under section 590 of relevant legislation. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) sought to intervene, arguing it had a right to be heard in the proceedings despite not being a recognised bargaining representative. The court had to determine whether the CFMMEU had a legitimate interest in the outcome of the application and, if so, whether procedural fairness required it to be given an opportunity to be heard.

The primary legal issue before the court was whether the CFMMEU had standing to be heard in the application for the approval of the enterprise agreement, given it was not a recognised bargaining representative. The court considered whether procedural fairness mandated that the CFMMEU should be given a chance to be heard, despite its lack of formal recognition as a bargaining agent. The court examined the extent to which procedural fairness could override the statutory requirement for bargaining representatives in such applications.

The court held that the CFMMEU did not have a right to be heard in the proceedings as it was not a recognised bargaining representative. The court reasoned that procedural fairness did not dictate that a party without formal recognition as a bargaining agent should be afforded the opportunity to be heard. The court concluded that procedural fairness did not compel the inclusion of non-recognised entities in the approval process, as the statutory framework explicitly designated bargaining representatives as the entities with the right to be heard. Therefore, the application for approval of the enterprise agreement proceeded without the CFMMEU's participation.

The court dismissed the CFMMEU's application to be heard in the proceedings, upholding the statutory requirement that only recognised bargaining representatives have the right to be involved in the approval of enterprise agreements. The court's decision affirmed the procedural integrity of the legislative framework, ensuring that only entities specifically authorised by statute could participate in the approval process.

Orders