Doorn-Djil Yoordaning Mining and Construction Pty Ltd

[2019] FWC 8297

[2019] FWC 8297

FAIR WORK COMMISSION

DECISION

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

Doorn-Djil Yoordaning Mining and Construction Pty Ltd
(AG2019/3333)

Mining industry
COMMISSIONER WILLIAMS	PERTH, 6 DECEMBER 2019

Application for approval of the Doorn-Djil Yoordaning Agreement 2019 - request by union to be heard.

[1] This decision concerns an application made under section 185 of the Fair Work Act 2009 (the Act) (Cth) for the approval of the Doorn-Djil Yoordaning Agreement 2019 (the Agreement). The applicant is Doorn-Djil Yoordaning Mining and Construction Pty Ltd (the Applicant).

[2] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU or the Union) requested, and was provided, copies of the Form Fl6 - Application for approval of an enterprise agreement and the From Fl7 - Employer's statutory declaration in support of an application for approval an enterprise agreement, in redacted form to protect personal information.

[3] Following this the CFMMEU have applied to be heard regarding the approval application. The Union provided written submissions in support of them being heard and detailed some of the objections they have to the Agreement being approved by the Commission.

[4] The Applicant has sought permission to be represented by a lawyer.

[5] Determination of the application by the CFMMEU to be heard will involve a consideration of case law concerning such matters which involve some complexity. Separately, the CFMMEU are a registered organisation that specialises in matters in this jurisdiction and so it would be unfair not to allow the Applicant to be represented by a lawyer taking into account fairness between the Applicant and the CFMMEU in this matter. Also, determination of the section 185 application itself, given the case law developments in recent years, will inevitably involve some further complexity. Taking these matters into account permission for the Applicant to be represented by a lawyer is granted under section 596(2)(a) and (2)(c).

[6] The Applicant has provided written submissions in response to the CFMMEU submissions.

[7] This decision deals only with the Union’s application to be heard.

The CFMMEU submission

[8] The Union advises it does not have any members employed by the Applicant who were involved in the making of the Agreement and does not submit it has standing to appear as of right as a bargaining representative or for any other reason.

[9] The Union points out the Agreement covers employees performing work on a mine anywhere in Australia. The Union submits that it represents the industrial interests of members employed in the coal mining and other mining industries nationally, it has a significant membership of construction and engineering employees employed by mining operators throughout Australia and points to its extensive and lengthy history of involvement in the mining industry and in particular the coal mining industry in Australia.

[10] It is submitted that its knowledge and experience stemming from its historical involvement and familiarity with the awards and work arrangements would be of assistance to the Commission and the approval process.

[11] For this reason, it is submitted that the Commission should allow the Union to be heard under section 590 of the Act.

[12] The Union submits that it would act as a contradictor which would assist the Commission achieve the satisfaction required under the Act.

[13] The Union provides preliminary submissions on some matters it is concerned about including genuine agreement, some NES matters and the BOOT.

The Applicant's submission

[14] On behalf of the Applicant it is submitted that the CFMMEU should not be heard by the Commission.

[15] The Union has no right to be heard in the application.

[16] The Agreement was made in August 2019, by a unanimous vote to approve with the Applicant’s 10 employees.

[17] The CFMMEU was not a bargaining representative for the Agreement.

[18] To be granted leave to be heard the Union must show it has a right, interest or legitimate expectation in relation to the agreements approval or otherwise satisfy the Commission that it is appropriate to exercise its discretion under section 590 of the Act.  1

[19] It is not the case that the Union or its members would be directly affected by a decision to approve the Agreement. Neither were involved in the bargaining process and there is no guarantee that the CFMMEU or its members will be covered by the Agreement in the future.

[20] The Commission therefore is not required to provide the Union with an opportunity to be heard, and a refusal to do so will not amount to a failure to provide procedural fairness.

[21] None of the other arguments from the Union provide sufficient grounds that the Union should be heard by exercise of the Commission’s discretion.

[22] In this case there are no unusual characteristics that warrant the Union being granted leave to be heard.

[23] The absence of a contradictor of itself does not warrant a grant of leave to be heard.

Consideration

[24] It is agreed that the CFMMEU was not involved in the bargaining process in this particular instance and it has neither any right, interest or legitimate expectation concerning the Agreements approval. Neither the CFMMEU’s interests nor its members will be directly affected by the outcome of this application.

[25] In this instance the CFMMEU was not involved in the bargaining process and consequently has no knowledge of events relevant to the approval application.

[26] I am not satisfied that the CFMMEU have put forward a sound reason why the Commission should exercise its discretion under section 590 of the Act and allow it to be heard in this matter.

[27] My decision is that the CFMMEU will not be heard further with respect to this matter.

Printed by authority of the Commonwealth Government Printer

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 1   CFMEU v Collinsville Coal Operations Pty Ltd (2014) 246 IR 21 at [52] and [53].