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

[1] 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.

[2] 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 v Collinsville 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.

[3] 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.

[4] 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.

[5] 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.

[6] Thereafter the Union pressed that by way of procedural fairness its interest in the matter meant it ought to be heard.…

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] FWC 4184
Decision Date: 5 JULY 2019

CaseChat Overview and Summary

The applicant, Bis Industries, sought approval for the Bis Enterprise Agreement 2018. The Australian Building and Construction Commission (ABCC) intervened in the proceeding, seeking to have the application dismissed. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to intervene, asserting it had a right to be heard as it was a relevant union. The CFMMEU was not a recognised bargaining representative under the agreement, and Bis Industries opposed the CFMMEU's application. The primary issue before the Fair Work Commission was whether the CFMMEU had a right to be heard when it was not a bargaining representative under the agreement. This issue hinged on whether procedural fairness required the CFMMEU to be heard, despite its lack of formal recognition.

The Commission held that procedural fairness did not dictate that the CFMMEU had a right to be heard. The CFMMEU had not demonstrated a sufficient connection to the agreement or the employees covered by it to warrant being heard. The Commission emphasised that the right to be heard in enterprise agreement matters is typically reserved for recognised bargaining representatives. Given that the CFMMEU was not a bargaining representative, the Commission found that procedural fairness did not require it to be heard. The Commission further noted that the CFMMEU's application to intervene was not in the interests of justice, as it could potentially disrupt the process and prejudice the parties involved.

As a result, the Commission dismissed the CFMMEU's application to intervene. The Commission concluded that the CFMMEU did not have a right to be heard in the proceeding and that procedural fairness did not compel a different outcome. The application for approval of the Bis Enterprise Agreement 2018 proceeded without the CFMMEU's participation. The Commission granted the application, approving the agreement as meeting the requirements of the Fair Work Act.

Orders