Decmil Australia Pty Ltd

[2019] FWC 4199

[2019] FWC 4199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Decmil Australia Pty Ltd
(AG2018/5678)

DEPUTY PRESIDENT YOUNG MELBOURNE, 17 JUNE 2019

Application for approval of the DA Enterprise Agreement 2018 – application by union to be heard.

[1] This decision relates to an application by Decmil Australia Pty Ltd for approval of an enterprise agreement known as the DA Enterprise Agreement 2018 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single-enterprise agreement.

[2] The application was allocated to Deputy President Gostencnik for consideration. On 21 March 2019 the Deputy President wrote to the company raising a number of concerns regarding the Agreement, including whether employees to be covered by the Agreement would be better off overall. As a consequence, the company provided undertakings for the Deputy President’s consideration on 29 March 2019. The undertakings provided did not satisfy all of the Deputy President’s concerns and the company was invited to provide further undertakings or submissions in relation to those outstanding concerns.

[3] On 4 April 2019, the Fair Work Commission (Commission) received an email communication from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) requesting copies of the Form F16 application, the Form F17 employer declaration and other material filed with the application. The Commission provided the CEPU with the documentation requested on 9 April 2019.

[4] On 9 April 2019 the company sought the Deputy President’s view as to whether two further proposed undertakings would enable him to be satisfied that the agreement passed the better off overall test (BOOT). On 10 April 2019 the Deputy President advised the company that should it provide the further undertakings he would be satisfied that the employees covered by the agreement would be better off overall. On 10 April 2019 the company provided the further undertakings. These undertakings were subsequently provided to the CEPU also.

[5] On 15 April 2019 the Commission sent an email communication to the CEPU advising it that the company had provided further undertakings which had resolved all of the Deputy President’s concerns and requesting that it advise the Commission as to whether it sought to provide submissions in relation to the matter.

[6] The CEPU advised the Commission of its intention to file submissions in support of its application to be heard and in accordance with Directions of the Deputy President filed its submissions on 29 April 2019. The company provided its submissions in response on 3 May 2019.

[7] A Mention/Directions Hearing before me was held on 20 May 2019. It was agreed that the question of whether the CEPU ought be heard would be determined first, on the papers. The parties were issued with Directions which required the company to file submissions as to the CEPU’s request to be heard pursuant to section 590 of the Act on 22 May 2019 and the CEPU to file any materials in reply by 29 May 2019. The company filed its submissions on 22 May 2019 in accordance with the Directions. The CEPU filed its submissions in reply on 29 May 2019 in accordance with the Directions.

Consideration

[8] The CEPU concedes that it was not involved in the negotiations for the Agreement. 1 It also concedes it was not a bargaining representative for any of the employees covered by the Agreement2 and does not have any members employed by the company.3 Accordingly, the CEPU does not have standing to appear as of right. The CEPU contends, however, that it should be heard pursuant to section 590 of the Act.

[9] Section 590 of the Act provides as follows:

“590 Powers of the FWC to inform itself

(1)  The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2)  Without limiting subsection (1), the FWC may inform itself in the following ways:

(a)  by requiring a person to attend before the FWC;

(b)  by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;

(c)  by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

(d)  by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e)  by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;

(f)  by conducting inquiries;

(g)  by undertaking or commissioning research;

(h)  by conducting a conference (see section 592);

(i)  by holding a hearing (see section 593).”

[10] Section 590 therefore confers on the Commission a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including, but not limited to, by inviting oral or written submissions from a person or organisation. It is not in dispute that the Commission has a discretion pursuant to section 590 to permit the CEPU to be heard in relation to the application for the Agreement.

[11] In support of its request to be heard, the CEPU relies upon the following statement of the Full Bench of the Commission in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd (Collinsville):

…the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of the agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person or organisation. 4

[12] The CEPU seeks to be heard in relation to whether the Agreement satisfies the BOOT and whether the Agreement was genuinely agreed to by the employees to be covered by it, in particular whether section 180(5) has been satisfied. The CEPU submits that the Commission may be assisted by the submissions of a contradictor in relation to the BOOT and relies upon the remarks of Commissioner Cambridge in Mr Irving Warren 5in this regard.6 The CEPU also relies upon the remarks made by Commissioner Roe in Perth Access Scaffolding Pty Ltd7.8 The CEPU concedes that it has no direct evidence to lead in relation to whether the Agreement was genuinely agreed to for the purposes of sections 186(2) and 188(1) of the Act.9

[13] Both parties filed extensive submissions. I have had regard to those submissions.

[14] The CEPU submits that it has an “interest” in the Agreement sufficient to support its request to be heard, arising from the following:

•  “the broad scope of the Agreement, which covers employees across all States and Territories engaged within a classification covered by the Building and Construction General On-site Award 2010 (Award)”;

•  the CEPU having “eligibility coverage and membership within the scope of the Award”;

•  “should the Agreement be approved, the CEPU is likely to obtain members who will be covered by the Agreement”; and

•  “the broad nature of the Agreement, which will have ‘implications’ for CEPU members as the company has recently won a major windfarm contract in Western Australia.”

[15] The company objected to the Commission hearing from the CEPU on the basis that, in the present circumstances, it does not have a sufficient right, interest or legitimate expectation that would be affected by the approval of the Agreement which would give it a right to be heard. The company relies, principally, upon the Full Bench decisions in Collinsville and Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd 10(MGI Piling).

Collinsville

[16] Having considered the submissions of the parties, it appears to me that they have conflated the approach regarding the establishment of a right, interest or legitimate expectation, with the exercise of discretion under section 590. The primary submissions of the CEPU, as set out above and noting that other submissions are also made, appear to be articulated on the basis that the CEPU has an “interest” sufficient to support its request to be heard. The submissions also appear, at least in part, to rely upon matters usually advanced when establishing an interest or right. The company in response provided lengthy submissions in response to the issue of right, interest or legitimate expectation and the Full Bench decisions and reasoning in Collinsville and MGI Piling.

Section 590

[17] The CEPU submissions clearly state that it seeks to be heard pursuant to section 590. 11 In its submissions, the company accepts that the Commission has such a discretion but submits it ought not be exercised.12 It was also clarified at the Mention/Directions hearing on 20 May 2019 that the question for consideration was whether I ought exercise my discretion under section 590 to hear from the CEPU. Accordingly, notwithstanding the approach taken in the submissions filed, I do not consider there to be any confusion that the matter before me is limited to whether discretion, pursuant to section 590, ought be exercised such that the CEPU ought be heard.

[18] For completeness, however, I note that the substance of the CEPU’s submissions as to right, interest or legitimate expectation in the context of a right to be heard were considered and rejected by the Full Bench in Collinsville, and this position was subsequently endorsed in MGI Piling.

[19] The CEPU contends that the Commission would be assisted by the submissions of a contradictor in relation to the BOOT. Whilst the Commission may, at times, be assisted by the submissions of a contradictor, I do not consider that the Commission would be so assisted in the present circumstances. As set out above, the Deputy President raised a number of concerns with the company, including in relation to whether the agreement passed the BOOT, in response to which undertakings were provided on 29 March 2019. The Deputy President was not satisfied that all of his concerns had been addressed and, in response, further additional undertakings were provided on 10 April 2019. Accordingly, it is clear that the Deputy President has given significant consideration as to whether the Agreement satisfies the BOOT. In these circumstances, it is not apparent what further assistance the CEPU could offer the Commission.

[20] As to whether the Agreement has been genuinely agreed to, the CEPU was not involved, at any stage, in the formation of the Agreement. 13 It therefore has no knowledge of the bargaining that occurred with the employees. At the Mention/Directions Hearing on 20 May 2019 the CEPU conceded that it cannot lead any direct evidence in relation to whether or not the Agreement was genuinely agreed to by the employees covered by the Agreement. Given these factors, it is difficult to see what assistance the CEPU can provide to the Commission in this regard. In its submissions, the CEPU refers to the decision of the Full Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union14 and the comments made by the Court in relation to what must occur in order for the Commission to reach the requisite state of satisfaction that the Agreement has been genuinely agreed to.15 I consider the Commission is adequately able to consider these matters and the CEPU, on its own admission, is not able to provide any evidence which would assist the Commission in relation to those matters.

[21] Accordingly, in the particular circumstances of this matter, I am not satisfied that the CEPU has established a basis upon which it should be invited to be heard in relation to the application for approval of the Agreement.

[22] The request by the CEPU to be heard is denied.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR709437>

 1   CEPU submissions dated 29 April 2019 at paragraph 9

 2   Form F16, dated 6 October 2018 at Question 4.1 and Mention/Directions Hearing on 20 May 2019

 3   CEPU submissions dated 29 April 2019 at paragraph 6 and Mention/Directions Hearing on 20 May 2019

 4   [2014] FWCFB 7940 at [75]

 5   [2017] FWC 4787

 6   CEPU submissions dated 29 April 2019 at paragraph 7

 7   [2016] FWC 8042 at [2]

 8   CEPU submissions dated 29 May 2019 at paragraph 86

 9   Mention/Directions Hearing on 20 May 2019

 10   [2016] FWCFB 2654

 11   CEPU submissions dated 29 April 2019 at paragraph 3 and paragraph 9; CEPU submissions dated 29 May 2019 at paragraph 1

 12   Decmil Australia Pty Ltd submissions dated 22 May 2019 at paragraphs 3 and 49

 13   CEPU submissions dated 29 April 2019 at paragraph 9 and Mention/Directions Hearing on 20 May 2019

 14 [2018] FCAFC 77

 15   CEPU submissions dated 29 April 2019 at paragraphs 12 – 20; CEPU submissions dated 29 May 2019 at paragraphs 12-15