Construction, Forestry, Maritime, Mining and Energy Union v AKN Pty Ltd T/A Aitkin Crane Services
[2020] FWCFB 3438
•1 JULY 2020
| [2020] FWCFB 3438 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union
v
AKN Pty Ltd T/A Aitkin Crane Services
(C2020/722)
VICE PRESIDENT CATANZARITI | SYDNEY, 1 JULY 2020 |
Appeal against decision [2019] FWCA 8474 of Deputy President Asbury at Brisbane on 13 December 2019 in matter number AG2019/711 – whether employer took all reasonable steps to explain the effect of the terms of the agreement – whether the effect of accepting an undertaking was likely to result in substantial changes to an enterprise agreement – appeal out of time– appeal dismissed.
[1] By its notice of appeal lodged on 7 February 2020, the Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU/Appellant) seeks permission to appeal and appeals a decision made on 13 December 2019 by Deputy President Asbury to approve a single-enterprise agreement with undertakings1 (Approval Decision). The agreement is titled the AKN Pty Ltd National Employee Services Agreement 2019 (Agreement).
[2] An appeal under s.604 of the Fair Work Act 2009 (FW Act) is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission may otherwise be granted on discretionary grounds.
[3] Section 604(1) of the Act permits a “person aggrieved” to make an application for permission to appeal a decision of the Commission. We are satisfied that the CFMMEU is such a person in relation to the Approval Decision.
[4] The CFMMEU’s notice of appeal advanced six grounds which contended that the Deputy President erred in approving the Agreement. However, on 11 March 2020 the Appellant filed an amended Notice of Appeal in which it abandoned most of its earlier grounds, but then pressed an amended ground 2, a new ground 2A and ground 6. Consequently, before us the Appellant confined itself to the following grounds, namely that the Deputy President erred in:
“2. being satisfied that the Respondent had taken all reasonable steps to explain the terms and the effect of the terms of the Agreement for the purposes of s.180(5) of the FW Act because she could not be satisfied that the Respondent provided adequate explanation of clause 5 of the Agreement and/or the award terms and/or the NES terms referred to therein. in that, the Form F17 statutory declaration contained key omissions and inaccuracies in respect of terms being less beneficial than the underlying award;
2A. in being satisfied that the Respondent complied with s.280(2) of the FW Act because she could not be satisfied that the Respondent provided copies or access to the awards that had terms incorporated into the Agreement.
6. failing to consider s.190(3) of the FW Act, in the undertakings made in respect of BOOT and NES issues would result in substantial changes to the agreement.
a. failing to find that she was satisfied that her concerns had been met;
b. failing to take into account the non-monetary benefits of the relevant awards that are not included in the Agreement;
c. failing to consider whether the undertakings made in respect of the BOOT and NES issues would result in substantial changes to the agreement;
d. failing to consider whether the undertakings are likely to result in financial detriment to the employees; and
e. failing to seek the views of the employee bargaining representatives.”
[5] The appeal was heard by the Full Bench on 22 April 2020 in Sydney by telephone having regard to COVID-19 restrictions. Mr S Crawshaw SC appeared for the Appellant and Mr L Izzo, solicitor appeared for the Respondent. We granted permission for the parties to be legally represented, having found the requirements of s.596 of the FW Act were satisfied.
Background
[6] AKN Pty Ltd (t/a Aitkin Crane Services) (AKN/Respondent) is a member of the Boom Logistics Group of companies. It provides dry hire cranes to major mining, infrastructure and construction sites. AKN made the Agreement with the 6 employees covered by it on 7 March 2019 when all of them voted in favour of it. The application for approval of the Agreement was made on 14 March 2019.
[7] The CFMMEU was not a bargaining representative for the Agreement. However, on 21 May 2019 it advised the Fair Work Commission (Commission) that it “wish[ed] to be heard regarding the [Agreement].” Consistent with the broad discretionary power founded in s.590 of the FW Act, which allows the Commission to inform itself in relation to any matter and in any manner as it considers appropriate, the Deputy President allowed the CFMMEU the opportunity to make submissions and be heard in relation to the application.
[8] On 24 June 2019 the CFMMEU filed submissions in opposition to the approval of the Agreement. It submitted, amongst other things, that the Agreement did not pass the Better Off Overall Test (BOOT) and that the Respondent had not taken all reasonable steps to explain the effect of the terms of the Agreement with the consequence that the Commission could not be satisfied that the Agreement was genuinely agreed to. Noting that the Agreement has national coverage (across three different modern awards), but was only voted on by 6 employees, the CFMMEU also contended that the Agreement lacked “moral authenticity”. 2
[9] The matter was programmed for hearing on 13 August 2019. Thereafter there was a further program for final submissions and an opportunity for AKN to submit further modelling in response to issues raised at the hearing.
[10] In an interim decision on 9 December 2019 3 (Reasons Decision) the Deputy President held that she was satisfied that AKN had taken all reasonable steps to explain the terms of the Agreement.4 The Deputy President was further satisfied that the Agreement was genuinely made. Her Honour held “that there is no basis for finding that the Agreement lacks authenticity or moral authority”.5
[11] The Deputy President then addressed concerns about the National Employment Standards (NES) and BOOT. The Deputy President noted that the undertakings, which to that point had been proffered by AKN did not address all the outstanding issues. AKN was then provided “with a further and final opportunity to consider providing … undertakings” 6 to address outstanding concerns.
[12] On 13 December 2019 AKN provided further undertakings. On that day the Deputy President approved the Agreement with undertakings (Approval Decision). 7 The Agreement commenced operation on 20 December 2019.
[13] At 4.54 pm on 13 December 2019 the Approval Decision was dispatched to AKN’s representative, the bargaining representatives and the CFMMEU. The decision was published on the Commission website. 8
[14] On 7 February 2020 (i.e. 56 days after the Approval Decision) the CFMMEU lodged the present appeal. The Appellant filed an Amended Notice of Appeal on 11 March 2020.
Rule 56(2)
[15] Rule 56(2) of the Fair Work Commission Rules 2013 deals with the time period for lodging appeals. That rule relevantly provides that an appeal must be lodged within 21 calendar days after the date of the decision appealed against. It follows that the present appeal was lodged 35 days outside the prescribed time limit. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which an appeal is to be lodged and the Appellant has made such an application.
[16] In Lesic v No. 1 Riverside Quay Pty Ltd T/A BP Australia 9 the Full Bench observed that,
“[7] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities 10 indicate that the following matters are relevant to the exercise of the Commission’s discretion to extend the prescribed time for the lodging of an appeal:
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.
[8] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.”
Reason for the delay
[17] The reason for the delay was set out in an affidavit (Exhibit B) made by Emma Barnes-Whelan the Appellant’s National Legal Officer. Ms Barnes-Whelan appeared for the Appellant in the hearing before the Deputy President. Noting that the Approval Decision was issued on 13 December 2019, Ms Barnes-Whelan attested to the following:
“6. During the week commencing 9 December 2019 I was very unwell and was required to access personal leave on 10 and 13 of December 2019. …
7. The decision of Asbury DP of 9 December 2019 was sent by email to me at 4.18 pm on 9 December 2019. … I accessed [the email] after 30 January 2020.
8. My best recollection is that I departed the office for the day prior to that time due to being unwell.
9. The decision of Asbury DP of 13 December 2019 was sent by email to me at 4.54 pm on 13 December 2019. …I accessed [the email] after 30 January 2020.
10. Due to being unwell, I must have missed the emails from the Chambers of Deputy President Asbury that attached the decisions …. Accordingly, I failed to forward them through to the New South Wales Branch. This omission is inconsistent with my usual practice where I would keep a Divisional Branch informed on the progress of a case it has an interest in or have otherwise referred to the National Office.
11. It was not until Dane Syron from the New South Wales Branch enquired with me about the progress of the matter on 30 January 2020 that I conducted a search of my email and realised that I missed the emails from the FWC on 9 December 2019 and 13 December 2019 that notified me of the decisions.”
[18] Mr Syron also made a Statutory Declaration (Exhibit A). In it he declared that,
“10. On 30 January 2020, I happened to look at the Fair Work Commission agreements in progress page in respect of agreements that the CFMMEU was involved in. After noticing that the [AKN] Agreement [was not] in the agreements in progress page, I then searched and found it in the agreements page and found that a decision to approve the Agreement had been made on 13 December 2019. I then found the approval had been preceded by another decision on 9 December 2019.
[19] The Appellant submitted that the “evidence demonstrates that the reason for the delay was a communication breakdown within the appellant.” Before us Mr Crawshaw SC submitted that,
“We don’t rely on Ms Barnes-Whelan being on leave as the excuse. We rely on the fact that she did not read any of the three emails that were sent that might have alerted her to the decision prior to, or the decisions, prior to 30 January [2020].” 11
[20] The Respondent submitted that,
“This is not a case of a “communication breakdown” as has been suggested in the Appellant’s Submissions. It is rather a case of apparent disinterest in the outcome of the Decision. Had the outcome or the Decision been of material importance to those involved in the proceedings, there does not appear to be any reason advance as to why the Notice of Appeal could not have been prepared and lodged at the relevant time. The CFMMEU is not a self-represented litigant. It is a well-resourced, sophisticated and well organised union that routinely engages in such matters. The Commission would reject any contention to the contrary.”
[21] The Respondent overplays its hand by contending that the Appellant was disinterested in the proceedings and the decisions. Clearly, Ms Barnes-Whelan as the Appellant’s National Legal Officer who had carriage of the matter, was very interested in the matter. Because she was absent from work on 10 and 13 December 2020 she was not in the office when the decisions were emailed to her. But what is not further explained by Ms Barnes-Whelan is why she failed to notice the emails on any of the days between:
a) 13 December 2019 and 3 January 2020 when the appeal could have been instituted within time; nor
b) 3 January 2020 and 30 January 2020 (when she noticed the emails).
[22] There is also no explanation about the delay between 30 January 2020 and 7 February 2020 (when the appeal was instituted).
[23] The Appellant is a sophisticated employee organisation with an in-house legal and industrial team. It has the capacity to keep abreast of developments, including the approval of decisions, whether through the receipt of notices from the Commission (as was the present case) or, in a timely way, interrogating the Commission’s website. The present circumstances can be distinguished from the situation where the union was not a participant in the first instance proceedings, and it cannot be blamed for not knowing about the approval of the agreement until after the 21-daty period expired. 12
[24] Further, we reject the contention that the delay was occasioned by a communication breakdown. There was no communication breakdown. The Commission promptly informed the Appellant’s nominated representative of the decisions. There is no evidence of a communication breakdown between Ms Barnes-Whelan and Mr Syron. There was no communication between them until, in late January 2020, Mr Syron followed up with Ms Barnes-Whelan. Ms Barnes-Whelan’s failure to read her emails between 13 December 2019 and 30 January 2020 is not a satisfactory reason for the delay.
[25] The unsatisfactory reason for the delay weighs against granting the Appellant an extension of time to file the appeal.
Length of the delay
[26] The length of the delay is 56 days.
[27] The length of the delay is significant and weighs against granting the Appellant an extension of time to file the appeal.
The grounds of appeal
The Amended Notice of Appeal
[28] On 11 March 2020 the Appellant filed an amended Notice of Appeal. The Respondent complains that, in relation to proposed amended Ground 2 and proposed new Ground 2A, the CFMMEU did not raise the issues at first instance before the Deputy President. The Respondent contended that this fact should prevent the Appellant from now raising the matter on appeal.
[29] In the large majority of cases the enterprise agreement approval process does not involve any contradictor and thus requires the Commission to assess the approval criteria against uncontradicted information and material advanced by the applicant for approval. Consequently, it has been observed that it may be appropriate to grant permission to appeal in respect of arguments which were never advanced at first instance. 13
[30] However, that is not the case in the present matter. The matter before the Deputy President was contested by the CFMMEU and it had every opportunity to contradict the material filed by the AKN.
[31] The Respondent relied upon the Full Bench decision in CFMMEU v Townsville Marine Logistics Pty Lt & Ors 14 which held that,
“[23] We consider that it is strongly in the public interest for interested persons to raise issues at first instance when they have been given an opportunity to do so and not to hold back for an appeal arguments they should have made at first instance. It is not the function of an appeal process to provide a further opportunity for an unsuccessful party to redress deficiencies in the case the party advanced (or failed to advance) at first instance. As the High Court observed in Metwally v University of Wollongong: 15
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
[24] In Coulton v Holcombe, 16 Gibbs CJ, Wilson, Brennan and Dawson JJ considered these issues in the context of public interest considerations (references omitted):
“… To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. …
The Court of Appeal recognized the great importance, in the public interest, of these principles. Their Honours summarized them in the following terms:
‘the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court’.
… the principles to which we have referred earlier in this judgment have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice. So it is in the present case. The first respondents must be bound by the conduct of their case at the trial. It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied.”
[25] Gibbs CJ, Wilson, Brennan and Dawson JJ also addressed the exception to this general principle (references omitted): 17
“… In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards. In O'Brien v. Komesaroff, Mason J., in a judgment in which the other members of the Court concurred, said:
‘In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided. However, this is not such a case. The facts are not admitted nor are they beyond controversy.
The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.’””
[32] The Appellant relied upon the Full Bench decision in AWU v Professional Traffic Solutions Pty Ltd 18 where it was held that,
“[40] …, a failure of the Commission to make findings, to the requisite standard, that s 180(5) has been satisfied, is a matter going directly to the jurisdiction of the Commission to approve an enterprise agreement. A failure of a party to raise the matter at first instance, is irrelevant. It does not absolve the Commission from determining, on appeal, whether the Commissioner had acted beyond jurisdiction in approving the Agreement. This is so, because an agreement cannot be approved, if there is no jurisdiction to do so.”
[33] Professional Traffic is consistent with the Full Bench decision in Australian Municipal, Administrative, Clerical and Services Union v Yarra Valley Water Corporation 19. In that matter the Full Bench held that,
“[24] Ordinarily that conclusion would lead to permission to appeal being refused. The usual principle is that a party should not be permitted to argue a case on appeal which it did not raise at first instance. This principle, and the policy rationale which supports it, was explained in Coulton v Holcombe 20 the following way:
“To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”
[25] However the position is different if the new issue being raised is jurisdictional in nature. 21 The Commission has an overriding duty to ensure that it acts within the scope of the powers conferred upon it by its governing statute. Ground 5 of the ASU’s appeal contends that the Commissioner had no jurisdiction to approve the Agreement because, on the evidence, there were for the purpose of s.188(c) reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees covered by it. We consider that it is necessary for us to consider this jurisdictional argument even though we have concluded it was not properly raised before the Commissioner.”
[34] It is not possible to reconcile the decision in Townsville Marine Logistics (2019) with the decisions in Professional Traffic (2018) and Yarra Valley (2013). With respect to the Full Bench in Townsville Marine Logistics, in the context of an appeal involving a question of jurisdiction, that decision is plainly wrong. We adopt, with respect, the line of authority since Yarra Valley. It is a simple proposition; the Commission either has jurisdiction in respect of a matter or it does not.
[35] For these reasons we have decided to grant the Appellant permission to amend its Notice of Appeal.
Ground 2 – explanation of terms and effect of terms (s.180(5))
[36] Clause 5 of the Agreement provides that,
(a) This Agreement will be read and interpreted in conjunction with the NES. Where there is inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.
(b) Subject to subclauses 5(c) to (d) below, the provisions of the Mobile Crane Hiring Award 2010 (MCHA); the Manufacturing and Associated Industries and Occupations Award 2010 (MAIO Award) and the Road Transport and Distribution Award 2010 (RTD Award) ("the Awards"), as varied from time to time, are incorporated into and form part of this Agreement ("Incorporated Terms").
(c) The Incorporated Terms only apply to those classifications in the Agreement which are covered by the relevant Award.
(d) The Incorporated terms are supplementary to the terms of this Agreement, provided that where a term of this Agreement is inconsistent with an Incorporated Term, the terms of the Agreement will prevail to the extent of any inconsistency.
(e) Incorporated Terms relating to allowances; redundancy; shift work and overtime are expressly excluded from the Agreement and have no application to the Employees.
[37] The predecessor agreement to the Agreement, the AKN Pty Ltd National Employee Services Agreement 2014 (2014 Agreement), did not include a clause like clause 5. Consequently, by operation of the FW Act the 2014 displaced the operation of the underpinning awards during its operation. Therefore, the Agreement, by operation of clause 5, incorporated some of the terms of the underlying modern awards. The Agreement is therefore more beneficial to employees than the 2014 Agreement. To the extent that the Agreement makes clear that the employees are not entitled to “redundancy, shift work and overtime”, in operation, that is no change from the 2014 Agreement.
[38] In the Reasons Decision the Deputy President dealt with the explanation of the terms of the Agreement and the effect of those terms in paragraphs [26] – [37] and [43] – [44]. Her Honour adopted the reasoning in both One Key Resources v CFMEU 22 and AWU v Rigforce Pty Ltd23. Her Honour addressed the evidence, including that of the meetings held with employees. In conclusion her Honour was satisfied that AKN took all reasonable steps to explain the terms of the Agreement and the effect to the employees.
[39] In AWU v Rigforce Pty Ltd the Full Bench summarised the principles relevant to the operation of s.180(5),
“[35] In considering the “genuinely agreed” ground of appeal, it is necessary for reasons which will become apparent to consider in detail only the question of compliance with the pre-approval step in s 180(5). The nature of the requirement in s 180(5) was analysed in detail by the Federal Court (Flick J) in CFMEU v One Key Workforce Pty Ltd. 24 We adopt the summary of that analysis set out in CFMMEU v Ditchfield Mining Services Pty Limited,25 which reduced it to the following four propositions:
(1) whether an employer has complied with the obligation in s 180(5) depends on the circumstances of the case;
(2) the focus of the enquiry whether an employer has complied with s 180(5) is first on the steps taken to comply, and then to consider whether:
• the steps taken were reasonable in the circumstances; and
• these were all the reasonable steps that should have been taken in the circumstances;
(3) the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given; and
(4) an employer does not fall short of complying with the obligation in s 180(5) of the FW Act merely because an employee does not understand the explanation provided.
[36] Additionally, we also adopt the analysis of Gostencnik DP in BGC Contracting Pty Ltd 26 concerning the nature of a statutory obligation to take “all reasonable steps” as follows (footnote omitted):
“[43] A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense…””
[40] In the Reasons Decision the Deputy President found that,
“[34] In Mr Mitchell’s affidavit filed in these proceedings he states that the terms of the Agreement and the effect of those terms was explained at a meeting on 26 February 2019. Mr Mitchell states that all employees to be covered by the Agreement attended this meeting. Ms Heidi Dorn attended as the representative of the employer as Mr Naulty was on leave at the time. Mr Mitchell attended the meeting by telephone.
[35] According to Mr Mitchell, the meeting occurred over 2 hours. During that time the Agreement was discussed clause by clause. There were regular stops during the meeting to ensure that employees understood what was meant. Mr Mitchell says he would have stopped approximately 8 times to check employees’ understanding. At the conclusion of the clause by clause discussion, Mr Mitchell asked employees twice, whether they had any questions. Mr Mitchell does not recall the exact words used throughout the two hours but recalls the gist of discussions regarding key clauses for employees. Mr Mitchell gives evidence over 4 pages of his statement in which he identifies matters that he recalls were discussed. It is not necessary to recount that evidence in full, but it is appropriate to identify that in my view the discussion was thorough.”
[41] We discern no error in the Deputy President’s findings and approach. The steps taken by Mr Mitchell were appropriate and reasonable. The explanation meeting that occurred on 26 February 2019 occurred in the following context 27:
a) bargaining commenced following the issuing of a Notice of Employee Representational Rights in September 2018;
b) meetings occurred on 14 September 2018, 21 September 2018, 5 October 2018, 30 January 2019, 31 January 2019; and 12 February 2019; and
c) at least 12 versions of the proposed agreement being provided to employees (all with tracked changes).
[42] It is not necessary that an employer explain each and every term of an agreement and its effect, but in this case, Mr Mitchell declared that “we went through the proposed Agreement clause by clause over the course of a 2-hour discussion” 28. He declared that “obviously, I do not recall the exact words used in the meeting. However, … we discussed that the terms of the Awards were incorporated…”29
[43] What is required in explaining the effect of terms of an agreement is a question of reasonableness in the circumstances. In this matter there was no direct evidence at first instance about exactly what was said in relation to the incorporation of the modern awards by operation of clause 5, but Mr Mitchell confirmed clause 5 was discussed. Further, marked-up versions of various drafts of the Agreement put the employees on notice about the incorporation. Not specifically providing further information about the effect of incorporation does not mean that the Respondent failed to take all reasonable steps. As we have observed above, clause 5 was a more beneficial term than that which appeared in the 2014 Agreement. The purpose of explaining the effect of the terms of an agreement is to ensure that employees voting on the agreement genuinely agree to it. In this matter 100% of the employees voted and voted in favour of the Agreement based on the explanation given to them. There can be no concern that the employees did not genuinely agree with the Agreement because a more beneficial term was not specifically explained to them.
Ground 2A – provision of copies or access to incorporated materials (s.180(2))
[44] In the Reasons Decision the Deputy President dealt with the provision of incorporated material in paragraphs [19] – [25] in the context of a complaint made by the CFMMEU that AKN had not provided employees with policies and procedures. Her Honour concluded that she was satisfied that the requirements of s.180(2)(a)(ii) had been met.
[45] The specific issue of the modern awards not being provided to employees was not raised by the CFMMEU at first instance before the Deputy President. The partial incorporation of the modern awards into the Agreement enhanced the benefits to employees in comparison with the 2014 Agreement. In any case the relevant materials are publicly available (on a range of websites). That is sufficient for the material to be readily available to the employees.
Ground 6 – acceptance of undertakings (s.190)
[46] In the Reasons Decision the Deputy President dealt with NES and BOOT issues in paragraphs [48] – [68] and AKN’s proposed undertakings in paragraphs [69] – [73]. The Deputy President’s conclusions in relation to the NES and BOOT are dealt with at paragraphs [74] – [75]. Her Honour then provided AKN “with a further and final opportunity to consider providing the undertakings in terms suggested above…” 30
[47] In the Approval Decision the Deputy President held,
“Undertakings were provided by the Applicant in response to concerns the Commission held in relation to certain clauses and whether the Agreement passes the better off overall test. Pursuant to s.190 of the Act, I accept the Applicant’s undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms a part of the Agreement.” 31
[48] Sections 190(2) and (3) of the FW Act provide that,
“(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.
(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.”
[49] In the present matter the Deputy President identified concerns in the Reasons Decision. AKN then filed further consolidated undertakings. It necessarily follows from the fact that the Deputy President accepted the undertakings in the Approval Decision that she was satisfied about the matters in s.190(3). A fair reading of the two decisions read together leads to that conclusion.
[50] At paragraph [4] of the Approval Decision the Deputy President stated that she was “satisfied that each of the requirements of s186 … have been met.” Section 186(2)(d) deals with the BOOT. The Deputy President’s satisfaction at paragraph [4] means she was satisfied that the Agreement passed the BOOT once the undertakings had been provided.
[51] In relation to the Appellant’s submissions about the undertakings causing “substantial changes to the Agreement”, we are not persuaded that the undertakings do anything more than increase the quantum of benefits payable under the Agreement. 32 We have carefully considered the Aide Memoire prepared by the Appellant. It evidences the extensive nature of the undertakings. However, the undertakings do not result in a wholesale reshaping of the agreement. The various undertakings address concerns about the NES and the BOOT. The affected provisions in the Agreement have been remedied by the undertakings and the employee’s entitlements enhanced. The undertakings do not impose arrangements on employees that they have not approved.
[52] Finally, it is apparent from the evidence of Mr McAullife that the bargaining representatives were consulted about the undertakings. The Deputy President was informed of that fact. 33
[53] In conclusion, we discern no error in the Deputy President having accepted the undertakings.
Conclusion in relation to the grounds of appeal
[54] The lack of merit in the grounds of appeal weigh against granting the Appellant an extension of time to file the appeal.
Prejudice to the respondent
[55] The employees covered by the Agreement voted in favour of it on 7 March 2019. After contested proceedings the Agreement was approved and commenced operation on 20 December 2019.
[56] If permission to appeal was granted and the appeal allowed (which, for the reason above, we do not believe it would be) and the Agreement approval was quashed such that it became necessary to redetermine the application for approval, it would cause great uncertainty to the Respondent and its employees. In circumstances were:
a) the Respondent and its employees have been operating under the Agreement for 6 months; and
b) a wage increase under the Agreement was paid on 1 January 2020,
there would be prejudice caused to the Respondent if an extension of time was granted.
[57] The prejudice to the employer weighs against granting the Appellant an extension of time to file the appeal.
Conclusion
[58] The delay in lodging the appeal in this matter is significant and the Appellant has not advanced a satisfactory reason for that delay. We have considered the grounds of appeal and the submissions advanced in support of those grounds. In our view, it is highly unlikely that permission to appeal would be granted in this case.
[59] Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly, we dismiss the Appellant’s application to extend time to file the appeal.
VICE PRESIDENT
Appearances:
Mr S Crawshaw, of Senior Counsel for the Appellant
Mr L Izzo,solicitor for the Respondent
Hearing details:
2020
Sydney (by video conference)
22 April
Printed by authority of the Commonwealth Government Printer
<PR720634>
1 [2020] FWCA 8474
2 CFMEU v One Key Workforce Pty Ltd [2017] FCA 1266
3 [2019] FWC 8338
4 [2019] FWC 8338, [43]
5 [2019] FWC 8338, [45]
6 [2019] FWC 8338, [77]
7 [2019] FWC 8474
8 PR715294
9 [2015] FWCFB 395
10 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Ropafadzo Tokoda v Westoac Banking Corporation T/A Westpac[2012] FWAFB 3995
11 Transcript PN32
12 AWU v Rigforce Pty Ltd[2019] FWCFB 6960
13 Appeals by the Maritime Union of Australia against decisions [[2016] FWCA 5277], [[2016] FWCA 4654] and [[2016] FWC 5249] Re: MMA Offshore Logistics P/L t/a MMA Offshore Logistics and Ors [2017] FWCFB 660
14 [2019] FWCFB 3589
15 (1985) 60 ALR 68 at [7]
16 (1986) 162 CLR 1 at 7-11
17 (1986) 162 CLR 1 at 7-8
18 [2018] FWCFB 6333
19 [2013] FWCFB 7453
20 (1986) 162 CLR 1 at 7
21 See Goumas v Wattyl Australia Pty Ltd (2005) 145 IR 256 at [43]-[48]
22 [2018] FCAFC 77
23 [2019] FWCFB 6960
24 [2019] FWCFB 4022 at [64]-[68]
25 [2018] FWC 1466
26 [2017] FCA 1266, 270 IR 410 at [99]-[108]
27 Appeal Book pp.228-230
28 Appeal Book p.231
29 Ibid
30 [2019] FWC 8338
31 [2019] FWCA 8474, [2]
32 CFMEU v KAEFER Integrated Services Pty Ltd [2017] FWCFB 5630
33 CFMMEU v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022
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