Downer EDI Engineering Power Pty Ltd

[2020] FWCA 4805

[2020] FWCA 4805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2020/2513)

WASA ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 11 SEPTEMBER 2020

Application for approval of the WASA Enterprise Agreement 2020 – confidentiality order.

[1] An application has been made for approval of an enterprise agreement known as the WASA Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering Power Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 September 2020 and was determined on the papers.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] On 24 August 2020, the Applicant wrote to the Commission seeking a confidentiality order under s.594(1) of the Act to prohibit the disclosure or publication of the signature, name, title and address of the employee representative and employer representative who signed the Agreement. The request was based on concerns about retribution held by the employee representative who has signed the Agreement.

[5] The Applicant subsequently provided additional submissions and contended that I had a discretion to make a confidentiality order, and that the Applicant previously had to deal with matters in the past where an employee representative who is a signatory to the agreement experienced forms of retribution inside and outside the work environment from Unions and Union members who have worked alongside an employee representative. The employee signatory also wrote to me advising of his concerns.

[6] I was referred to the decision in Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019 1 where the Commission redacted the employee signatory details. The Deputy President in that matter referred to the Full Bench decision in The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd (Oji.2

The following extract from Oji is relevant:

“[59] Section 594 states:

‘594 Confidential evidence

(2) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).’ (emphasis added)

[60] The Respondent advances two points in respect of s.594. The first is that while the heading to s.594 refers to ‘Confidential evidence’ that heading does not operate to constrain the scope of the section and must give way to the clear and unambiguous words of the section.

[61] We accept that the heading of s.594 does not operate to constrain the scope of the section such that it only authorises an order prohibiting or restricting the publication of confidential evidence. We note that the section heading does not form part of the FW Act. Section 13 of the Acts Interpretation Act 1901 (Cth) (as in force at 25 June 2009) provides:

‘13 Headings, schedules, marginal notes, footnotes and endnotes

(1) The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.

(2) Every schedule to an Act shall be deemed to form part thereof.

(3) No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.’ [emphasis added]

[62] While not part of the FW Act, the heading to s.594 forms part of the context in which the substantive provision is to be construed. But in this instance the heading does not control the permissible scope of the substantive provision. It is plain from the terms of s.594 that it is not confined to confidential evidence; so much is clear from the expression ‘because of the confidential nature of any evidence, or for any other reason’ in the prefatory words of s.594(1) and the terms of ss.594(1)(b) and (d). The section title must give way to the clear and unambiguous words of the section. As Latham CJ observed in Silk Bros Pty Ltd v State Electricity Commission (Vic):

‘where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment’

[63] The second proposition advanced is that s.594(1)(c) allows orders to be made in relation to ‘matters contained in documents lodged with the FWC’; that ‘wage rates’ are ‘matters’; and that an enterprise agreement is a ‘document’ that is ‘lodged’ with the Commission. On this basis, it is submitted that s.594(1)(c) empowers the Commission to make an order redacting the wage rates in an enterprise agreement.

[64] In our view the argument put is misconceived. The enterprise agreement document that is required to be lodged with the Commission under the FW Act, the Fair Work Regulations 2009 and the Fair Work Commission Rules 2013 (Rules) is the ‘signed copy of the agreement’ referred to in s.185(2). But for the reasons which follow, we are not persuaded that the agreement that must be published under s.601(4)(b) is that signed copy.

[65] Section 601(4)(b) is directed at the publication of the enterprise agreement that has been approved by the Commission under Part 2-4. The enterprise agreement which is approved, and which must be published, is not the document lodged with the Commission (ie the signed copy of the agreement referred to in s.185(2)) but rather is the enterprise agreement ‘as made’.

[66] An enterprise agreement is made when it is approved by a vote of employees (ss.182(1) and (2)). After an ‘enterprise agreement is made’, a bargaining representative must apply to the Commission for ‘approval of the agreement’ (s.185(1)). The application must be accompanied by a ‘signed copy of the agreement’ and any declarations required by the Rules (s.185(2)).

[67] The EM explains the rationale for requiring a ‘signed copy of the agreement’ to be lodged:

‘761. Subclause 185(1) requires a bargaining representative to apply for FWA approval of an enterprise agreement that has been made. This can be the employer, a bargaining representative for an employer, or a bargaining representative for an employee.

762. Subclause 185(2) sets out the material that must accompany the application for FWA approval. The bargaining representative must provide FWA with a signed copy of the agreement and any other declarations required by the procedural rules of FWA. The requirement for a bargaining representative to provide FWA with a signed copy of the agreement is intended to ensure that the agreement that FWA considers for approval is the one that the parties have made. …

763. The powers of FWA enable it to inform itself in relation to the application in such manner as it considers appropriate (clause 590), including contacting the employer or employers, their employees, and bargaining representatives.’ (emphasis added)

[68] It follows from this that if an enterprise agreement as made does not include the details of the signatories to the agreement, the Commission is not compelled by s.601(4)(b) to publish those details (although it may choose to do so). Further, in the event the signed copy of the agreement lodged with the Commission is to be published, the details of the signatories may be redacted and could also be the subject of an order under s.594(1)(c).” 3

[7] I have determined that the Agreement that was made, be published and in so far as necessary I exercise my discretion under s.594(1) of the Act to redact the details of the employee signatory and any information which tends to identify that person, having satisfied myself that the employee is entitled to execute the Agreement.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 10 September 2024.

COMMISSIONER

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<AE508959 PR722601>

 1   [2019] FWCA 6818.

 2   [2018] FWCFB 7501.

 3   Ibid at [59]-[68].