Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited

[2014] FWC 4276

[2014] FWC 4276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union
v
Collinsville Coal Operations Pty Limited
(C2014/1098)

VICE PRESIDENT HATCHER SYDNEY, 27 JUNE 2014

Application to stay a reserved decision of Senior Deputy President Harrison at Brisbane on 16 June 2014 in matter number AG2014/568.

[1] On 13 March 2014 Collinsville Coal Operations Pty Limited (Collinsville) filed an application under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement (Agreement) made with 21 employees named in the application. Each employee was described in the application as being a “self-appointed Bargaining Representative”.

[2] The hearing for approval of the Agreement took place before Senior Deputy President Harrison on 2 May and 16 June 2014. The Construction, Forestry, Mining and Energy Union (CFMEU) sought to be heard in relation to the application. It sought to make submissions to the effect that approval of the Agreement would be contrary to the objects of the Act and to equity, good conscience and the merits of the matter, that the Agreement had not genuinely been agreed to by employees in accordance with s.188 of the Act, that there was a lack of authenticity and moral authority in the Agreement, that there was no fair agreement-making between the employer and the employees, and that the Agreement did not pass the better off overall test (BOOT) in s.193 of the Act. The CFMEU submitted that it had a direct interest in the matter because it was a bargaining representative for one employee, it had a historic role and interest in the black coal mining industry, and had previously represented large numbers of persons who had worked at the Collinsville mine for a previous operator and were now unemployed.

[3] During the course of the hearing, the Senior Deputy President made a number of interlocutory rulings affecting the CFMEU’s role in the proceedings (Decisions), including that:

● the CFMEU was not permitted to have access to certain documents;

● summonses for production of documents applied for by the CFMEU were not to be issued;

● certain submissions made by the employer from the bar table on disputed or challenged matters would be accepted;

● the CFMEU was not allowed to adduce evidence or be heard on certain aspects of the case it wished to agitate in opposition to the approval of the Agreement, including as to the genuineness of agreement under s.188 and whether the matter constituted a test case;

● the CFMEU was confined to making submissions about the application of the BOOT;

● the CFMEU was not permitted to cross-examine witnesses about certain matters;

● the CFMEU was not a bargaining representative for the purpose of the proceedings; and

● an adjournment to allow the CFMEU to lodge a notice of appeal and have a stay application heard was refused.

[4] On 13 May 2013 the President of the Commission dismissed an application by the CFMEU under s.615A of the Act for Collinsville’s application for approval of the Agreement to be referred to a Full Bench for hearing and determination. 1 The President’s reasons for his decision included the following:

“[10] I am not persuaded that it is in the public interest to refer the application to a Full Bench as I am not persuaded that the submissions advanced on behalf of the CFMEU sufficiently enliven the public interest.

[11] The efficient allocation of the Commission’s resources is also a relevant consideration. The hearing is likely to take some time and involve a number of interlocutory determinations. The duration and nature of the proceedings are such that it is more suited to determination by a single Member, rather than a Full Bench.

[12] As I am not satisfied that it is in the public interest to direct a Full Bench to hear and determine the application, the CFMEU’s s.615A application must be dismissed.”

[5] The Senior Deputy President reserved her decision concerning Collinsville’s application at the conclusion of the hearing on 16 June 2014 (subject to the parties being directed to confer and provide advice as to the precise identification of the evidentiary materials that were before her).

[6] On 23 June 2014 the CFMEU lodged a notice of appeal against the Decisions. The Decisions are described with greater particularity in the notice of appeal. It is contended in the notice of appeal that the Senior Deputy President erred in making the Decisions in the following respects (particulars excluded):

“1. The Senior Deputy President erred in acting inconsistently with or disharmoniously when compared to the recent five-member Full Bench approach and decision in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042 (Peabody Moorvale).

2. The Senior Deputy President denied the CFMEU procedural fairness or natural justice in not requiring the production of documents or records and/or then allowing the CFMEU access to documents or records, as any discretion as to relevant procedures for access to documents is subject to the overarching obligation of the Commission to ensure a reasonable opportunity to present a case.

3. The Senior Deputy President denied the CFMEU procedural fairness or natural justice by not giving the CFMEU a reasonable opportunity to present its case, in that the CFMEU was not permitted to adduce all of its own evidence.

4. The Senior Deputy President denied the CFMEU procedural fairness or natural justice by not giving the CFMEU a reasonable opportunity to present its case, in that the CFMEU was not permitted the opportunity to cross-examine Mr Bernie O’Neill (the maker of the employer’s Form 17) and Mr David Olive (who made an affidavit for the employer concerning “the Company’s Fatigue Management Policy” that is incorporated by reference in the purported enterprise agreement).

5. The Senior Deputy President denied the CFMEU procedural fairness or natural justice by not giving the CFMEU a reasonable opportunity to present its case or otherwise acted in a manifestly unjust manner.

6. The Senior Deputy President erred in accepting the employer’s written submissions or oral submissions from the bar table and/or not requiring for the Commission to be satisfied about statutory pre-approval steps or prerequisites by the hearing of evidence.

7. The Senior Deputy President erred in deciding that the CFMEU is not a bargaining representative and, accordingly, does not have that status in this application for approval of this agreement.

8. The Senior Deputy President erred in not adjourning the proceedings following an application by the CFMEU.

9. The Senior Deputy President erred in upholding the employer’s objection to the CFMEU making and developing a submission that this was a test case about the role of the CFMEU because a modus operandi emerging in the black coal industry for both owner operators and contractors is to have a handful of employees involved in making an enterprise agreement and then having it apply to a larger group of employees.

10. Any one error or combination of errors as pleaded above, worked a substantial injustice to the CFMEU and denied it substantive rights.”

[7] The notice of appeal also contended that permission to appeal should be granted in the public interest because the approach of the Senior Deputy President was disharmonious with the Full Bench decision in Peabody Moorvale, the Decisions manifested an injustice, the considerations in ss.3(a) and (e) of the Act needed to be taken into account, Full Bench guidance was required as to the role of registered organisations with an interest beyond that of an ordinary member of the public in first instance and appeal matters, the appeal raised issues of importance and general application, and the appeal was a test case concerning enterprise bargaining in the black coal industry.

[8] The CFMEU has applied for a stay of the Decisions pending the hearing and determination of its appeal. The stay order sought is that the Decisions (including the refusal to adjourn the proceedings) be stayed “on terms and conditions that the EA application is adjourned until a Full Bench determines the appeal or makes orders it considers appropriate”.

[9] The power to grant a stay pending the hearing and determination of an appeal lodged under s.604 is contained in s.606(1), which provides:

(1)  If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

[10] The principles concerning whether a stay application will be granted are well-established. They are as stated in Edghill v Kellow-Falkiner Motors Pty Ltd 2:

“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[11] However the application of those principles is necessarily subject to it being demonstrated at the outset by the applicant for a stay that there is an operative decision with ongoing or future effect capable of being stayed under s.606(1). It is not clear to me that this has been demonstrated here. For example, the CFMEU seeks as part of its stay application that the decision of the Senior Deputy President to refuse an adjournment be stayed. It is not apparent how a stay of such a decision could have any practical effect. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal. 3 It appears that, in substance, the CFMEU seeks a stay of the proceedings before the Senior Deputy President pending the hearing and determination of the appeal. Section 606(1) does not provide power to do this. The CFMEU seeks to surmount this difficulty by applying for terms and conditions attaching to the stay order that the proceedings before the Senior Deputy President be adjourned. I doubt that this solves the difficulty, for two reasons: firstly, there must in the first place be a properly founded stay order to which any term or condition under s.606(1) can attach; and secondly the adjournment requirement sought by the CFMEU is not in substance a term or condition of a stay order but an entirely separate order. As for the other procedural rulings made by the Senior Deputy President, it is likewise difficult to identify any practical effect of a stay upon those rulings, since the hearing before the Senior Deputy President has now been completed.

[12] I do not need to state a final conclusion about these matters because I consider that the stay should be refused on balance of convenience grounds. The practical effect sought to be achieved by the CFMEU by the grant of the stay it has applied for would be, as earlier stated, to stay the proceedings before the Senior Deputy President and thus prevent her Honour from issuing a decision in the matter. The present position is that it is unlikely that the appeal can be heard until October, with a decision to be issued some time after that. If the appeal is unsuccessful, the matter would then revert to the Senior Deputy President to issue a decision. If the appeal is successful, the application for approval of the Agreement would have to be re-heard. Either way, the likely result would be that no decision as to whether the Agreement is to be approved would be issued until late this year or in 2015. There would then be the possibility of a further appeal. I consider that a delay of this order in the determination of an application lodged in March is unacceptable if a more convenient course is available.

[13] If no stay is granted, there are two possibilities. The first is that the Senior Deputy President will issue a decision approving the Agreement. If that occurs, it would be open to the CFMEU to appeal that decision, and seek a stay of that decision. In that eventuality, the Commission would be able to hear and determine in a single hearing, with the benefit of the Senior Deputy President’s reasons for decision, all issues which the CFMEU may wish to raise concerning the approval of the Agreement and dispose of those efficiently. It was not in dispute, and is clearly the case, that the CFMEU could in an appeal from the approval decision challenge any of the Senior Deputy President’s interlocutory rulings which affected the final result. 4 If the CFMEU’s appeal was unsuccessful, the approval of the Agreement would stand without the need for any further hearing. If the CFMEU was successful, whether a further hearing was necessary would depend upon the basis upon which it succeeded.

[14] The second possibility is that the Senior Deputy President decides not to approve the Agreement. In that scenario, this appeal becomes moot (except perhaps if there is an appeal from the final decision by Collinsville). In neither scenario is any substantial prejudice to the CFMEU or its interests identifiable.

[15] I consider that the balance of convenience clearly favours the refusal of the stay application. That makes it unnecessary for me to consider whether the CFMEU’s appeal is arguable with some reasonable prospects of success. The CFMEU’s application for a stay is dismissed.

VICE PRESIDENT

Appearances:

B. Docking of counsel with A. Bukarica and E. Thornton solicitor for the Construction, Forestry, Mining and Energy Union

J. Murdoch QC with K. Anderson solicitor for Collinsville Coal Operations Pty Limited

Hearing details:

2014.

Sydney:

27 June.

 1   [2014] FWC 3129

 2   [2000] AIRC 785, Print S2639 at [5]

 3   See Bahonko v Sterjov [2007] FCA 1717 at [50]

 4   Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478; United Firefighters' Union of Australia v Country Fire Authority[2013] FWCFB 8165 at [19]

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