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CFMMEU v Ditchfield Mining Services Pty Limited

CFMMEU v Ditchfield Mining Services Pty Limited

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[2019] FWCFB 4022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v
Ditchfield Mining Services Pty Limited
(C2019/1236)

SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT SAUNDERS

SYDNEY, 14 JUNE 2019

Appeal against decision [2019] FWCA 661 of Deputy President Bull at Sydney on 5 February 2019 in matter number AG2018/1902 – whether there was a denial of procedural fairness – whether there could be satisfaction that employer complied with s.180(5) – permission to appeal granted – appeal upheld – decision to approve agreement quashed – application to approve agreement remitted to the Deputy President.

[1] By its notice of appeal lodged on 26 February 2019, the Construction, Forestry, Maritime, Mining, and Energy Union (Appellant) seeks permission to appeal and appeals a decision made on 5 February 2019 by Deputy President Bull to approve a single-enterprise agreement with undertakings¹ (Decision). The agreement is titled the Ditchfield Mining Services Pty Ltd – Coal Mining Enterprise Agreement 2018 (Agreement).

Background

[2] The Agreement was made on 26 April 2018, when Ditchfield Mining Services Pty Ltd (Respondent) requested four employees employed at the time and covered by the Agreement to approve the Agreement and those employees voted to approve it.² At the time the Agreement was made, the four employees were covered by the Black Coal Mining Award 2010 (Award). According to the Respondent’s material filed in support of its application for the approval of the Agreement, there had previously been an enterprise agreement covering the employees while these employees had been working for a parent company of the Respondent.³ It appears from the Respondent’s material that the relevance of the prior enterprise agreement was that it operated as a reference point for the purposes of explaining the terms of the Agreement and effect of those terms to employees. So much is clear from the following, which appears in answer to question 2.6 in the employer’s statutory declaration:

“The agreement is similar to an enterprise agreement which had previously applied to former mining operations undertaken by a parent company of the Applicant and which was well known to all of the employees (who had previously been employed under this agreement). All amendments to the previous Agreement were clearly highlighted to make it easy for the employees to identify any changes. Employees were invited to discuss any concerns with management.”4

[3] There appears no dispute that at the time the four employees voted to approve the Agreement, their employment was covered by the Award, and that the Award applied in relation to their employment by the Respondent. The Agreement is expressed to cover employees undertaking work that would otherwise be covered by the Award.⁵

[4] The Appellant was not a bargaining representative for the Agreement. The Appellant sought to be heard in relation to the application to approve the Agreement. The Deputy President opined that the Appellant was able to assist the Fair Work Commission (the Commission) in its…

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 4022
Decision Date: 14 JUNE 2019

CaseChat Overview and Summary

The case involves an appeal against a decision made by Deputy President Bull in the Federal Court of Australia on 5 February 2019. The respondents, CFMMEU and Ditchfield Mining Services Pty Limited, were involved in a dispute regarding the approval of an enterprise agreement. The Federal Circuit Court's decision to approve the agreement was challenged on the grounds of procedural fairness and compliance with section 180(5) of the Fair Work Act 2009.

The legal issues before the court included whether there was a denial of procedural fairness in the approval process and whether it could be determined that the employer had complied with section 180(5) of the Fair Work Act 2009. The court had to examine the fairness of the process that led to the approval of the enterprise agreement and whether the employer's actions aligned with the statutory requirements for approving such agreements.

In considering these issues, the court found that there was indeed a denial of procedural fairness in the approval process. It was determined that the employer had not adequately provided the necessary information to the respondents, which affected their ability to participate effectively in the decision-making process. Additionally, the court concluded that it could not be satisfied that the employer had complied with section 180(5) of the Fair Work Act 2009. Consequently, the appeal was upheld, and the decision to approve the agreement was quashed. The application to approve the agreement was remitted to the Deputy President for further consideration.

The final orders of the court were that the decision to approve the enterprise agreement was quashed and the matter was remitted to the Deputy President for reconsideration, ensuring that procedural fairness was observed and compliance with section 180(5) of the Fair Work Act 2009 was properly addressed.

Orders