DOF Management Australia Pty Ltd

[2016] FWC 3792

[2016] FWC 3792

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

DOF Management Australia Pty Ltd
(AG2016/2924)

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 14 JUNE 2016

Application for approval of the DOF Management Australia Pty Ltd Maritime Offshore Oil and Gas Industry Enterprise Agreement 2016 – MUA standing to be heard.

[1] On 29 April 2016 DOF Management Australia Pty Ltd (DOF) filed an application (Application) pursuant to section 185 of the Fair Work Act 2009 (Cth) (FW Act) for the approval of the DOF Management Australia Pty Ltd Maritime Offshore Oil and Gas Industry Enterprise Agreement 2016 (Proposed Agreement).

[2] The Application which was filed had certain information redacted from it.

[3] On the same day, DOF sought an order pursuant to section 594(1)(c) of the FW Act that the personal identifiers of individual employee(s) (who were appointed as bargaining representatives and signed the Agreement for and on behalf of employees of DOF) be kept confidential.

[4] On 3 May 2016 the Fair Work Commission (Commission) received an application from the Maritime Union of Australia (MUA) requesting that the MUA be heard in relation to the Application and be provided with a copy of the DOF Form F16 and Form F17 and a copy of, or access to, the matter file. DOF objected to the MUA being heard in any capacity in relation to the Application.

[5] A telephone conference was listed forThursday 19 May 2016 for both DOF and the MUA to be heard in relation to their respective requests (Telephone Conference).

[6] On Wednesday 11 May 2016 an extension of time for the filing of an non-redacted Application to the date of the Telephone Conference on 19 May 2016 was granted pursuant to section 185(3)(b) of the FW Act.

[7] In light of the submissions of the parties during the Telephone Conference, on 20 May 2016 the Commission issued a confidentiality order pursuant to section 594(1)(c) of the FW Act that the identity of employees proposed to be bound by the Agreement and the identity of the bargaining representatives of those employees be kept confidential.

[8] By way of directions issued to DOF and the MUA on 19 May 2016 (Directions), DOF was granted an extension of time pursuant to section 185(3)(b) of the FW Act to close of business, Wednesday 1 June 2016to file with the Commission an un-redacted version of the Application.

[9] With the knowledge of DOF the Commission provided the MUA with the redacted copies of the Forms F16 and F17 which were filed by DOF on 29 April 2016.

[10] The Directions required both DOF and the MUA to file further written materials in relation to the MUA’s standing to be heard as follows.

(a) DOF was directed to file submissions in relation to the standing of the MUA to be heard in relation to the Application in the capacity of a bargaining representative and any evidence on which DOF relies in support of its submissions (including but not limited to a list of the names of the employees proposed to be covered by the Agreement) by close of business on Wednesday 1 June 2016.

(b) The MUA was directed to file a list of the names of its members potentially covered by the Proposed Agreement by close of business, Wednesday 1 June 2016 to assist the Commission to determine whether the MUA has standing to be heard in relation to the Application in the capacity of a bargaining representative.

A further confidentiality order was issued to the MUA pursuant to section 594(1)(c) of the FW Act that the identity and personal information of any individual current or former member of the MUA produced, disclosed, named, revealed or referenced in this matter including, but not limited to, in any written document or oral evidence be kept confidential.

(c) Both parties were provided with the opportunity to file submissions in reply.

[11] DOF and the MUA were advised in the Directions that a determination in relation to the MUA’s standing to be heard in relation to the Application would be made on the written materials filed in accordance with the Directions. The parties agreed that no oral submissions would be made.

[12] At the outset of the Telephone Conference, the parties were invited to make submissions in relation to representation. Based on those submissions and taking into account the complexity of the matter I was satisfied that representation by lawyers or paid agents would enable the matter to be dealt with more efficiently. Satisfied that the requirements of section 596 of the FW Act had been met, leave was granted for lawyers or paid agents to represent DOF and/or the MUA

Consideration

[13] In its submissions the MUA has sought permission to be heard as a full participant in the matter including permission to lead its own evidence and to cross examine any witness called by DOF. The MUA has also indicated that it will seek orders to obtain documents in advance of the hearing subject to appropriate confidentiality orders. DOF have objected to the MUA being heard in any capacity.

[14] There are four potential avenues by which an employee organisation might establish standing to be heard in relation to an application for approval of an agreement:

(a) As a bargaining representative of one or more employees to be bound by the Proposed Agreement. 1

(b) As a matter of procedural fairness if the employee organisation is able to establish a right, interest or legitimate expectation that it will be adversely affected by the decision. 2

(c) If invited by the Commission in the exercise of its power under section 590 of the FW Act to inform itself. 3

(d) On appeal, if the employee organisation can show a grievance, which will be suffered as a result of the decision complained of, beyond that of an ordinary member of the public. 4

[15] The fourth avenue is only available on appeal and not at first instance. The fact that an employee organisation may a have a right of appeal against a decision to approve an enterprise agreement does not of itself create a right to be heard in relation to the approval application at first instance. 5

Right to be Heard as a Bargaining Representative

[16] According to the Statutory Declaration of Mr Mike Llewelyn (Llewelyn Statutory Declaration), DOF initiated bargaining for the Proposed Agreement on 1 April 2016. According to Mr Llewelyn, on that day he handed to the employees who were engaged at that time and eligible to be covered by the Proposed Agreement (DOF Employees) a Notice of Employee Representation Rights and a copy of the draft Proposed Agreement. Mr Llewelyn says that on the same day (it appears from his Statutory Declaration subsequently on that day), the DOF Employees gave written instruments of appointment to DOF nominating either themselves or a co-worker as their bargaining representatives for the purposes of section 176 of the FW Act (AppointedBargaining Representatives).

[17] Based on the evidence before me it appears that the DOF Employees were members of the MUA at the time DOF initiated bargaining for the Proposed Agreement. Pursuant to section 176(1)(b) of the FW Act, the MUA was therefore a bargaining representative of the DOF Employees until the DOF Employees appointed the Appointed Bargaining Representatives. The default appointment of the MUA as a bargaining representative ceased when the appointments of the Appointed Bargaining Representatives were made. 6

[18] While the fact that an employee organisation was at some point a bargaining representative of an employee is sufficient for the organisation to give notice under section 183 of the FW Act that it wishes to be covered by a proposed agreement, it does not give the organisation standing to make submissions or to otherwise be heard in opposition to an application for the approval of the agreement. 7

[19] I find that the MUA does not have standing to be heard in the capacity of a bargaining representative, however the MUA may give notice pursuant to section 183 of the FW Act that it wishes to be covered by the Proposed Agreement.

Right to be Heard as a Matter of Procedural Fairness

[20] As a matter of procedural fairness, standing may be granted to an employee organisation who is not a bargaining representative if the organisation can identify a right, interest or legitimate expectation that might be affected, or potentially affected, by the decision to approve an agreement. 8

[21] Whether an employee organisation which is not a bargaining representative has a right to be heard in relation to an application for approval of an agreement will depend on the circumstances in each case. 9

[22] The following rights have been held not to be sufficient to attract the right to be heard: 10

● Right to represent industrial interests.

● Right for employees to be members.

● Right to be involved in bargaining for a successor agreement or right to advocate for improvements for the terms and conditions of employees in the industry more broadly.

● Right for an officer of the employee organisation who is a permit holder to investigate suspected contraventions of the FW Act or terms of a proposed agreement.

● Rights which the employee organisation has under OHS legislation to represent employees and protect employees’ interests.

[23] The Full Bench has made clear that the mere fact that an employee organisation has an ongoing relationship with its members and is entitled to represent their industrial interests is not a sufficient basis to conclude that the approval of an enterprise agreement will adversely affect a right, interest or legitimate expectation of that employee organisation.”¹¹

[24] Even a history of representation and membership at the worksite has been held to be, of itself, not enough to create a legitimate expectation that would attract a right to be heard. 12

[25] Similarly, the fact that an employee organisation has amongst its interests, objections or expectations that it will obtain and maintain reasonable employment conditions for its members is an insufficient basis to create a right, interest or legitimate expectation which would found a right to be heard in relation to an application. 13

[26] However, an employee organisation may have a right to be heard if the proposed enterprise agreement displaces or alters the rights and obligations of an employee organisation vis-à-vis the employees. 14

[27] In this case, the MUA submit that it has a right to be heard because it has a right, interest or legitimate expectation that might be effected by the proceeding arising from rights or obligations which are placed on the MUA by the terms of the Proposed Agreement. In particular, the MUA say that clauses 6, 8 and 10 of the Proposed Agreement place rights and obligations on the MUA and therefore affect the rights and interests of the MUA both as an organisation and vis-à-vis existing and future employees of DOF bound by the Proposed Agreement who are or are to become members of the MUA.

[28] The term ‘Union’ is defined in clause 3.1 of the Proposed Agreement as meaning the Maritime Union of Australia. Clause 6 of the Proposed Agreement grants MUA delegates certain rights which facilitate their performance of their roles as delegates. For example clause 6.3(c) gives the MUA delegate the right to consult with vessel management and to have reasonable access around the vessel. Clause 8 of the Proposed Agreement deals with the establishment and conduct of a workplace consultative committee. The clause specifically recognises a right for the MUA to be a participant of the consultative committee and directs that the MUA perform that role in a specified manner. Clause 10 contains the Proposed Agreement’s dispute resolution procedure. As with clause 8, this clause also specifically identifies a distinct role for the MUA in the dispute resolution process. Clause 27.4 and Item 3.3 of Schedule 3 both require DOF to consult the MUA about specific matters.

[29] The MUA’s relationship to the Proposed Agreement is not limited to a historic involvement in the industry or a right to potentially cover the employees covered by the Proposed Agreement. The clauses in the Proposed Agreement specifically refer to the MUA and create enforceable rights for the MUA that would not otherwise exist. Clauses in the Proposed Agreement impose on the MUA the right and/or obligation to perform particular functions or tasks and to perform those functions or tasks in specified ways. For example, clause 8 of the Proposed Agreement provides the MUA with a role on the consultative committee and requires it to both give and be allowed an open exchange of views on that committee. The Proposed Agreement therefore alters the rights and obligations of the MUA vis-à-vis the employees (and DOF) from the position which would otherwise exist at law.

[30] It would be contrary to the rules of natural justice to deny the MUA a right to be heard in relation to a proposed agreement that directly and specifically affects the MUA but in respect of which the MUA was given no opportunity to be heard in the bargaining or approval process.

[31] I do not accept DOF’s submission that the decision by employees not to have the MUA as their bargaining representative is proof that the employees wished to exclude the MUA. There are many reasons why an employee may choose not to nominate an employee organisation as a bargaining representative. The employee may disagree with the philosophical approach of the relevant employee organisation or, in an industrially sensitive industry, the employee might feel (wrongly or rightly) that nomination of the union as a bargaining representative might jeopardise the employee’s ongoing employment. The fact that the employees have voted to support an agreement which entrenches a role for the MUA in the workplace would tend to suggest that the employees in question do not wish to ‘exclude’ the MUA.

[32] Whether an employee organisation which is not a bargaining representative has a right to be heard in relation to an application for the approval of an agreement will depend on the particular circumstances of the case. 15

[33] In this regard, the circumstances of this case can be distinguished from those which existed in cases such as CFMEU v Collinsville Coal Operations Pty Limited 16, Inco Ships Pty Ltd17 and Inco Ships Pty Ltd v AIMPE and AMOU18 where standing to be heard as a matter of procedural fairness was refused. In those cases the agreements in question did not contain any specific reference or role for the union which sought but was denied standing to be heard as a matter of procedural fairness.

[34] In the particular circumstances of this Application I find that, as the Proposed Agreement specifically refers to the MUA and imposes on the MUA rights and/or obligations to perform particular functions or tasks which would not otherwise exist and requires the MUA to perform those functions or tasks in specified ways that the MUA has a right, interest or legitimate expectation that might be affected, or potentially affected, by the decision to approve the Proposed Agreement. As it was not a participant in the negotiation of the Proposed Agreement, the MUA ought to be given the opportunity to be heard in relation to the approval of the Proposed Agreement.

Invited to be Heard Pursuant to Section 590 of the FW Act

[35] The Commission may, in the exercise of its powers under section 590 of the FW Act, choose to hear from an employee organisation about the approval of an agreement even though the employee organisation may not otherwise have a right to be heard. 19

[36] Section 590 confers on the Commission 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. 20

[37] A statutory declaration by Mr William Tracey was filed by the MUA in support of its application to be heard. This statutory declaration provides a detailed background about enterprise bargaining history in the industry, the MUA’s involvement in the bargaining and the nature of the MUA’s concerns about the circumstances in which the Proposed Agreement came about.

[38] There are a number of reasons why the Commission, as presently constituted, in the exercise of its powers under section 590 of the FW Act, might invite the MUA to make submissions in relation to the Application even if the MUA did not otherwise have a right to be heard.

(a) The MUA was, albeit briefly, a bargaining representative in relation to the Proposed Agreement.

(b) Based on the evidence before the Commission as presently constituted it appears that the DOF Employees are members of the MUA.

(c) The MUA has a long history of representing employees of the kind proposed to be covered by the Proposed Agreement.

(d) Since 2013 the MUA has been seeking to negotiate agreements with the employers in this industry.

[39] The MUA is therefore familiar with the content of the Proposed Agreement, and may be able to shed light on the circumstances in which the Proposed Agreement came to be approved by the Employees. The MUA can provide a perspective, independent of the author and proponent of the Proposed Agreement (DOF), who have a commercial interest in the Proposed Agreement being registered.

[40] In summary the MUA have raised concerns as to whether:

(a) the group of employees to be covered by the Proposed Agreement were fairly chosen;

(b) the Proposed Agreement was properly made; and

(c) the Proposed Agreement passes the better off overall test.

[41] While the concerns outlined in (a) and (b) above are not yet formally proven to be justified, to the extent that the MUA is able, the MUA has established that some inquiry into these issues ought to be made. The potential that the DOF Employees were not fairly chosen and/or that DOF may have manipulated the agreement making procedure is information to some extent exclusively within the knowledge of DOF and its advisors. The fact that the MUA can’t yet fully prove its allegations does not mean that it does not have a role to play in drawing these potential issues to the attention of the Commission. By permitting the MUA to make submissions and lead any evidence which it does have, the Commission can properly inform itself in relation to these matters and satisfy itself that the requirements for the approval of the Proposed Agreement have been fully met. If, as DOF assert, the MUA’s concerns are without merit then this will be easily established by DOF in the substantive hearing of this Application.

[42] The Commission is required to ensure that the agreement complies with the FW Act and the resolution of the concerns which have been identified should be conducted with transparency and appropriate rigor.

“Employee organizations with a legitimate interest in the industry and occupations covered by the Agreement may assist in the resolution of these issues of concern. In this way, a process involving open, diligent and comprehensive scrutiny should provide for the correct outcome, and also enhance the broader confidence in the Commissions enterprise agreement approval role.” 21

[43] In the particular circumstances of this matter, I have decided to grant standing for the MUA to be heard with respect to the Application. Thus, the MUA shall be entitled to appear and be heard in respect to the proceedings. The MUA shall be provided with an opportunity to scrutinise the issues of concern that have been identified and to call and cross examine witnesses in relation to those issues. It is my view that a proper examination of these issues will assist the Commission in the discharge of its statutory function. The grant of standing is not intended, and shall not be used, to unreasonably delay the expeditious determination of the Application.

[44] In order to provide for the determination of the Application, the MUA is directed to file and serve all evidence and submissions upon which it relies, within one week from the date of this Decision. DOF will be provided with one week from the due date for the filing and serving of the MUA materials to file and serve any evidence and submissions that it wishes to rely upon. The further Hearing of the matter will be scheduled for Monday 11 July 2016.

[45] The parties shall be at liberty to apply for such confidentiality or production orders which they believe are appropriate in the circumstances. I note that the MUA have previously indicated a willingness to be bound by appropriate confidentiality orders given the sensitivity of this particular application.

DEPUTY PRESIDENT

 1   Fair Work Act 2009 (Cth), section 176(1) and Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [16].

 2   Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [72].

 3   Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [48] and [75].

 4  Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64; CEPU and AMWU v Main People Pty Ltd [2014] FWCFB 8429; Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at footnote 13; and Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’ Union[2016] FWCFB 3370 at [15].

 5   Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’[2016] FWCFB 3370 at [15].

 6   CFMEU v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at [25].

 7 Ibid at [38].

 8   Ibid at [53] and [72].

 9 Ibid at [72].

 10   Ibid at [55]-[70].

11 Ibid at [69].

 12   Ibid at [61]-[65].

 13 Ibid at [70].

 14 Ibid at [71].

 15 Ibid at [72].

 16   [2014] FWCFB 7940.

 17   [2016] FWC 1637.

 18   [2016] FWCFB 3370.

 19 Ibid at [75].

 20 Section 590 of the FW Act.

 21   Inco Ships Pty Ltd [2016] FWC 1637 at [25].

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