Construction, Forestry, Mining and Energy Union v Pyramid Constructions (WA) Pty Ltd; RE Asset Logistics Pty Ltd
[2017] FWCFB 3410
•2 AUGUST 2017
| [2017] FWCFB 3410 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Mining and Energy Union
v
Pyramid Constructions (WA) Pty Ltd; Absecon Pty Ltd; RE Asset Logistics Pty Ltd; The Cove Administration Services Pty Ltd; Pyramid Group (Aust) Pty Ltd t/a Pyramid Group Australia
(C2017/1987)
| Vice President Hatcher |
|
Appeal against decision [2017] FWCA 1734 of Commissioner Williams at Perth on 28 March 2017 in matter number AG2017/725.
This is an edited version of the decision given on transcript at the conclusion of the hearing of this matter on 16 June 2017.
The Construction, Forestry, Mining and Energy Union (CFMEU) has applied for permission to appeal and appealed a decision[1] of Commissioner Williams issued on 28 March 2017 (Decision). In the Decision the Commissioner approved an enterprise agreement known as the Pyramid Group Employee Enterprise Agreement 2017 (Agreement).
The CFMEU's appeal raises a number of appeal grounds, one of which is that it was denied procedural fairness because a request it made for access to the Form F16 application and the Form F17 statutory declaration in support of the application was not granted, with the result that it was not given the opportunity to make submissions about whether it should be heard in the proceedings.
The circumstances by which that occurred appears to be as follows. The application for approval of the enterprise agreement was lodged with the Commission on 9 March 2017. The CFMEU, on 27 March 2017, lodged a document with the Commission which expressed some concerns about the Agreement, and which sought access to the Form F16, the Form F17, and also a copy of the notice of employee representational rights. Without that request having been responded to and without holding a hearing into the matter the Commissioner then issued his Decision on 28 March 2017 approving the Agreement, without ever apparently hearing from the CFMEU or dealing with its submissions.
Following the Decision being issued, on 3 April 2017 an email was sent by the Commission's Member Support Research Team to the CFMEU which indicated that in dealing with the CFMEU's correspondence of 27 March 2017 there had been an administrative error, in that the correspondence had not been drawn to the Commissioner's attention prior to the Decision being issued, and accordingly that explained why it was not dealt with by him. In any event, the practical result was that the CFMEU's request was not granted.
In the Full Bench decision of CFMEU v Ron Southon Pty Ltd[2] issued on 19 December 2016, it was held, among other things, that the public interest in the open administration of justice required the CFMEU, even as a non-party, to be given access to the Forms F16 and F17 in relation to an enterprise agreement approval application on request, absent any special circumstances or confidentiality issue which arose. The Commission in that case held that a failure to comply with that request in the ordinary circumstances described would constitute an appealable error.
We see no reason why that principle does not apply squarely in this case. We therefore accept the submission of the appellant, supported by the respondent, very properly, that because of administrative error an appealable error occurred in this case in that by denying the CFMEU access to the Form F16 and Form F17, the result was, in the wash-up, a denial of procedural fairness. For those reasons we have decided to grant permission to appeal and uphold the appeal, and we have further decided, therefore, that it is necessary to quash the Decision of the Commissioner made on 28 March 2017.
Normally that would lead to a requirement to have a rehearing of the application to approve the enterprise agreement. However, we have been informed by the representative for the respondent, Mr Richardson, that it is the intention of the employer, Pyramid Group Australia Pty Ltd, to discontinue the approval application. Accordingly we will take no action in respect of rehearing the matter; we will simply stand the matter over generally and await the filing of a notice of discontinuance of behalf of the respondent.[3]
VICE PRESIDENT
Appearances:
K Sneddon and K Singh on behalf of the CFMEU.
K Richardson on behalf of Pyramid Constructions (WA) Pty Ltd; Absecon Pty Ltd; RE Asset Logistics Pty Ltd; The Cove Administration Services Pty Ltd; Pyramid Group (Aust) Pty Ltd t/a Pyramid Group Australia.
Hearing details:
2017.
Sydney:
16 June.
[1] [2017] FWCA 1734
[2] [2016] FWCFB 8413; 261 IR 194
[3] A notice of discontinuance was filed on 20 June 2017.
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