Construction, Forestry, Mining and Energy Union v Delta Coal Mining Pty Limited
[2014] FWCFB 5743
•4 SEPTEMBER 2014
| [2014] FWCFB 5743 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Delta Coal Mining Pty Limited
(C2014/5041)
VICE PRESIDENT CATANZARITI | BRISBANE, 4 SEPTEMBER 2014 |
Appeal against decisions [2014] FWC 3697 and [2014] FWCA 3712 of Senior Deputy President Harrison at Sydney on 3 June 2014 and 5 June 2014 in matter number AG2014/5678.
[1] On 3 June 2014, Senior Deputy President Harrison issued a decision 1 (Decision) proposing to approve the application by Delta Coal Mining Pty Ltd (the Respondent) for approval of the DC Enterprise Agreement 2014 (the Agreement). On 5 June 2014, after receiving an undertaking from the employer, another decision approving the Agreement was issued (the Approval Decision).2
[2] This is an appeal by the Construction, Forestry, Mining and Energy Union (the CFMEU) against both decisions of the Senior Deputy President.
Additional Evidence
[3] The CFMEU sought leave to adduce additional evidence at the hearing of the appeal. The relevant principles in relation to this issue were set out by a full bench as follows:
“Information which was available at the time of an initial hearing will normally not be admitted in the hearing of an appeal. Information which comes to light subsequently may be admitted if it bears on an issue to be determined in the appeal. In this case we are required to consider the correctness of the Deputy President’s decision as to the requirements of the Act regarding enterprise agreements. He made that decision on the basis of the evidence and submissions before him. Any subsequent reassessment of the circumstances is not relevant to the specific question we are required to consider. For this reason we declined the application to admit new evidence of the employment intentions contained in the employer’s written outline of submissions in the appeal.” 3
It is clear on its face that the evidence that the CFMEU now seeks to adduce was available to it at the time of the initial hearing. While the CFMEU submitted otherwise, we are not satisfied that there are any extenuating factors that would warrant allowing this material to be admitted for reasons that are explained below. We refuse leave to adduce this evidence.
Arguments not advanced at first instance
[4] Three of the grounds of appeal identified by the CFMEU related to arguments that were not advanced at first instance. These arguments related to the better off overall test, an alleged failure of the Respondent to make full and frank disclosure, and alleged non-compliance with s.180(5) of the Act which requires the employer to take all reasonable steps to explain the terms of the Agreement to relevant employees. In Metwally v University of Wollongong 4 the High Court said:
“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.” 5
[5] The CFMEU submitted that exceptional circumstances existed on the basis that the industrial officer of the CFMEU with carriage of the matter was unable to attend the hearing at first instance as his child was born on the day of the hearing. The Respondent did not contest the fact that the industrial officer was unable to attend the first instance hearing for this reason. The CFMEU submitted that this disadvantage, in addition to being denied an adjournment request, prevented it from advancing at first instance the arguments that it now seeks to advance. The denial of the CFMEU’s adjournment request is dealt with below.
[6] While the CFMEU’s industrial officer was not able to attend the first instance hearing, we find that this fact had little impact on the CFMEU’s ability to run its case. There has been no suggestion that an adjournment was sought on the day of the hearing on this basis. The CFMEU provided detailed written submissions at the first instance hearing, and no reference was made to the additional arguments that have been advanced on appeal. It is clear from the transcript that counsel acting for the CFMEU was not in a position to adduce evidence in support of his submission that the CFMEU had a member who would be covered by the enterprise agreement, nor to clarify whether or not the CFMEU was a bargaining representative for the purposes of the Agreement. 6 The position may have been different had the relevant industrial officer been present at the hearing. However, the CFMEU suffered no prejudice from this, as the Senior Deputy President proceeded on the basis that the CFMEU had members that would be covered by the agreement and allowed the CFMEU to intervene, albeit on a limited basis, despite its inability to confirm its position in relation to the Respondent’s workforce.7
[7] The basis on which the CFMEU was granted leave to intervene was limited to those issues that had been identified by its counsel as the sole grounds for its objection to the approval of the Agreement. There is no indication that the CFMEU was prevented from advancing the arguments that it now seeks to rely on at first instance.
[8] Having considered all of the circumstances of the case, we are not satisfied that any exceptional circumstances exist so as to justify allowing the CFMEU to raise new arguments that were not put before the Senior Deputy President at first instance.
Procedural Fairness
[9] The CFMEU submitted that it was denied procedural fairness at first instance. It makes this submission on the basis that its application for the first instance hearing to be delayed for a month in order for submissions and evidence to be filed was refused. However, the CFMEU’s application was refused in circumstances where it had notice of the Respondent’s application for approval of the enterprise agreement for over a month before the hearing, and had a copy of all of the relevant materials for two weeks prior to the hearing. During this time, the CFMEU reserved its position in relation to the approval of the enterprise agreement. Only after the Commission contacted the CFMEU in order to ascertain its position (and allowing it an extension to further consider its position) did the CFMEU confirm that it would be opposing the application.
[10] A full bench in Health Services Union 8considered the Commission’s obligation to ensure a fair hearing in the following terms:
“The Commission is required by s.577 of the FW Act to perform its functions and exercise its powers in a manner which is fair and just, and is quick and informal and avoids unnecessary technicalities; the Commission will therefore always be prepared to consider an adjustment to its procedures in order to ensure that a party receives a fair hearing. In Sullivan v Department of Transport, Deane J observed that procedural fairness requires only that a party be given ‘a reasonable opportunity to present his case’ and not that the tribunal must ensure ‘that a party takes the best advantage of the opportunity to which he is entitled’.
[11] It is clear that the Senior Deputy President considered the CFMEU’s application for the hearing to be delayed and made a finding that further delay was not justified. Despite the CFMEU’s submissions that it was prejudiced by the lack of an adjournment, its counsel had the opportunity to provide detailed written submissions at first instance. There is no indication that the CFMEU had, at first instance, further grounds to object to the approval of the Agreement that had not been fully developed. Having regard to all of the circumstances of the case, no error arises from the Senior Deputy President’s refusal to allow further delay in the first instance proceedings.
Access to required materials during access period
[12] The CFMEU also submitted that the Senior Deputy President erred in finding that all reasonable steps were taken during the access period to ensure that the relevant employees were given a copy of any material incorporated by reference in the agreement or had access to a copy of those materials. On the evidence before her, the Senior Deputy President accepted that there were multiple copies of the relevant material made available to the relevant employees during a number of information sessions that were held prior to the commencement of the access period and that photocopiers were available to the relevant employees at these meetings.
[13] The CFMEU submitted that the Senior Deputy President erred in fact by finding that Mr Richardson, the General Manager of Delta SBD, had “observed that some employees looked at the Award and some made photocopies of it or parts of it.” 9 The CFMEU submitted that this finding was not open to the Senior Deputy President on the basis that Mr Richardson conceded in cross examination that he did not know exactly what the employees were photocopying as he was not standing close enough to the photocopier.
[14] It was open to the Senior Deputy President to draw an inference from the evidence of Mr Richardson that some employees had copied the relevant materials. In any event, Mr Richardson’s evidence was not the only evidence relied upon by the Senior Deputy President in making her finding. We are satisfied that it was open to the Senior Deputy President, on the basis of all of the evidence before her, to conclude that the Respondent had taken all reasonable steps to ensure that the relevant employees were given a copy of, or had access to, the relevant materials.
Conclusion
[15] Having considered the submissions of both parties, we are not satisfied that permission to appeal should be allowed. We are not satisfied that the Senior Deputy President made any appealable error in her decisions, and in these circumstances there is no justification for granting permission to appeal. The appeal is dismissed.
VICE PRESIDENT
Appearances:
B Docking of Counsel for the Construction, Forestry, Mining and Energy Union.
Y Shariff of Counsel for Delta Coal Mining Pty Ltd.
Hearing details:
2014.
Sydney:
August 21.
1 [2014] FWC 3697.
2 [2014] FWCA 3712.
3 The Australian Workers' Union v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family Trust; Construction, Forestry, Mining and Energy Union [2011] FWAFB 4349, [22].
4 (1985) 60 ALR 68.
5 Ibid 71.
6 Transcript, PN18–PN51.
7 Transcript, PN65.
8 [2013] FWCFB 5551.
9 Delta Coal Mining Pty Limited [2014] FWC 3697, [16].
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