Downer EDI Engineering Power Pty Ltd

[2019] FWCA 6818

[2019] FWCA 6818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2019/2988)

APPLICATION FOR APPROVAL OF THE DOWNER EDI ENGINEERING POWER PTY LTD ALCOA OPERATIONS ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 10 OCTOBER 2019

Application for approval of the Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019.

[1] Downer EDI Engineering Power Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[4] The notification time for the agreement as defined in s 173(2) of the Act was 18 February 2019. Not all employees received a copy of the notice of employee representational rights (NERR) within 14 days, as contemplated by s 173(3). Section 173(1) requires that an employer ‘take all reasonable steps to give notice of the right to be represented by a bargaining representative’, and s 173(3) states that the employer ‘must give the notice as soon as practicable, and not later than 14 days, after the notification time.’ The notice that is referred to in s 173(3) is the notice in s 173(1). The primary obligation is for the employer to take all reasonable steps to give the notice, rather than ensure the notice is given in each and every case. Section 173(3) is concerned with the time within which this obligation is to be performed. In this case, the Applicant provided NERRs on 5 and 6 March 2019 to 23 employees who were not on the relevant work site during the period of 25 February 2019 to 4 March 2019, due to periods of annual or personal leave, or they were not required to be on site during that period.  

[5] In the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, having regard to the content of the statutory declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU), and the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) (together, the organisations),being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the statutory declaration provided by each of the organisations, I note that the organisations are covered by the Agreement.

[7] The Applicant applied for confidentiality orders under s 594(1)(c) of the Act and s 593. When submitting the Agreement for approval, the Applicant provided a copy of the Agreement signed by the employee representative and a copy absent the same employee’s signature (redacted version of the Agreement). Furthermore, the Applicant provided a letter to the Commission requesting a confidentiality order to prohibit the disclosure or publication of the signature, name, title and address of the employee representative (covered by the Agreement) who signed the Agreement.

[8] The Applicant submitted that it sought the confidentiality orders because the employee representative who had signed the Agreement on behalf of the employees covered by the Agreement, feared retribution. In this respect, the Applicant submitted that the evidence established that the employee representative who had signed the Agreement as required by Regulation 2.06(2)(a)(ii) of the Fair Work Regulations 2009 and section 185(2)(a) of the Act, would only sign the Agreement if her or his identify was not revealed to the organisations. The Applicant added that it was not able to find an employee representative of the employees covered by the Agreement willing to sign the Agreement unless their identity was concealed.

[9] In respect of the submissions made, Mr Twomey, IR Manager West of the Applicant, gave evidence that he oversaw the bargaining process for the Agreement. 2 Mr Twomey’s evidence was that after the Agreement was voted up he notified the bargaining representatives for the Agreement that he needed someone to sign the Agreement.3 Mr Twomey stated that he did not receive a response to his request.4 Mr Twomey continued that approximately two days before the Commission deadline to apply for the approval of the Agreement, he had still not received a response. He therefore directed the Site Manager to approach employees directly to ask for a signature and notify them that Downer would do everything possible to ensure their name and details would not be published.5

[10] Mr Twomey stated that the employee representative that signed the Agreement did so on the basis that their personal details would not be revealed to the organisations at any stage of the approval process. 6 According to Mr Twomey he had provided evidence in lieu of the employee representative due to that employee’s own anxieties about signing the Agreement and the Applicant’s ongoing concern to protect the employee representative’s identity.7

[11] It was Mr Twomey’s evidence that the Applicant may need to consider withdrawing the application for approval of the Agreement, if the employee representative’s details could not be supressed.

[12] The Applicant therefore applied for the following orders:

a) all information regarding the employee who signed the Agreement be kept confidential;
b) the un-redacted version of the Agreement remain confidential and not published; and
c) the redacted version of the Agreement only be published.

[13] Sections 593(3) and 594(1) give the Commission discretion to make an order prohibiting or restricting the publication of certain information in relation to matters before the Commission. The exercise of the discretion is subject to the Commission being satisfied that it is desirable to make an order because of the confidential nature of any evidence, or for any other reason.

[14] In decision of The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd (Oji) 8 the Full Bench concluded that if an enterprise agreement as made did not include the details of the signatories to the agreement, the Commission was 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).9

[15] Premised on the authority of the Full Bench in Oji, I am of the view the Agreement can be published absent the signature of the employee representative and details of her or his address, and authority to sign the Agreement. It follows that the redacted version of the Agreement will be published.

[16] Further, I am satisfied that the orders sought under s 594(1)(c) to maintain the confidentiality of all information about the employee representative including in the unredacted version of the Agreement, should be granted. An Order 10 is issued concurrently with this decision to that effect.
[17] I do not consider that maintaining the privacy of such employee would in any way prejudice the organisations. However, it should not be presumed that this in any way indicates an acceptance that the organisations had or would victimise the employee bargaining representative or had or would engage in any form of retribution. I have however considered the purported perception of the employee representative and the concern expressed by Mr Twomey about the welfare of the employee concerning health and safety. 11 I am mindful that the reason for the absence of a witness statement from the employee appears plausible. Furthermore, the order sought by the Applicant is not directed at preventing the publication of the identity of a party to the proceedings.

[18] The discretion is to be exercised if the Commission is satisfied it is desirable to do so and while the discretion is arguably broad, it is accepted that the question of whether to make an order involves ‘balancing the considerations of open justice and the interests of fairness and justice, taking into account how the order would affect each side’. 12 I am satisfied that the evidence in this case supports the making of the Order notwithstanding that the information sought to be supressed does not appear to be confidential in nature.

[19] In this respect I observe that orders were made in Yancoal Mining Services Pty Ltd (Yancoal) 13 to ‘maintain the privacy’ of affected employees who had signed an enterprise agreement that the employer sought approval of. The Deputy President in Yancoal observed that ‘there was a general acceptance by the CFMEU that it would be reasonable to suppress specified personal information’.14 The orders were confined by the Deputy President to the home address and personal contact details of the affected the employees having found the public interest was not served in publishing them.

[20] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 as are relevant to this application for approval have been met.

[21] The Agreement was approved on 10 October 2019 and, in accordance with s 54, will operate from 17 October 2019. The nominal expiry date of the Agreement is 17 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE505556  PR712969>

Annexure A

 1   Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Ors [2019] FWCFB 318.

 2   Witness Statement of Robert Twomey.

 3   Witness Statement of Robert Twomey.

 4 Witness Statement of Robert Twomey [7].

 5 Witness Statement of Robert Twomey [8].

 6 Witness Statement of Robert Twomey [9].

 7   Witness Statement of Robert Twomey [11] –[12].

 8   [2018] FWCFB 7501 [68].

 9   [2018] FWCFB 7501 [68].

 10   PR713185

 11 Witness Statement of Robert Twomey [12].

 12   Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited t/a DP World; Maritime Union of Australia, The Victorian Branch and Others [2015] FWC 4542 [20].

 13   [2016] FWC 6436 [8]-[9].

 14   [2016] FWC 6436 [8].