Application for approval of the Downer EDI Mining Blasting Services Queensland Coal Operations Agreement 2018 – CFMMEU a stranger to bargaining – CFMMEU a stranger to workplace – CFMMEU request to be heard generally under s.590 of Fair Work Act 2009 – detailed consideration of issues to be considered as part of s.590 request – concern that CFMMEU did not assist the Commission in the approval of this enterprise agreement – CFMMEU previously made greenfields agreement with Applicant employer in essentially the same terms as this enterprise agreement, yet now raises 17 objections as to terms previously agreed to by the CFMMEU and approved by the Commission – CFMMEU request to be heard revisited at end of hearing – compliance with s.180(5), all reasonable steps, genuine agreement, better off overall test.

[1] On 18 June 2019, I approved the Downer EDI Mining Blasting Services – Queensland Coal Operations Enterprise Agreement 2018 (“Agreement”) with undertakings. 1 The following sets out further reasons for that decision.

[2] At the hearing, Downer EDI Mining – Basting Services Pty Ltd (“Applicant”) was represented by Mr Jarrett Goos, Downer Group Employee Relations Manager, and the Construction, Forestry, Mining, Maritime and Energy Union (“CFMMEU”) was represented by Mr Adam Walkaden, National Legal Officer.

The Agreement

[3] The Agreement is a single-enterprise agreement. The Applicant lodged its application for approval of the Agreement with the Fair Work Commission (“Commission”) on 23 July 2018.

[4] The Agreement was made directly with three employees, who voted by majority to approve it on 17 July 2018.

[5] On 18 March 2019 this matter was allocated by the Commission Registry to the Chambers of Deputy President Boyce.

The Agreement replaces an earlier greenfields agreement made with the CFMEU

[6] The Agreement replaces the Downer EDI Mining Blasting Services Queensland Coal Greenfields Agreement 2015 (“Greenfields 2015 Agreement”). 2 The latter was approved by the Commission on 10 April 2015, to operate from 17 April 2015 until its nominal expiry date on 17 April 2018.

[7] The Greenfields 2015 Agreement was made with the Applicant and the (then) Construction, Forestry, Mining and Energy Union (“CFMEU”), now the CFMMEU, pursuant to s.172(2)(b) of the Fair Work Act 2009 (“Act”).

[8] The Agreement is in essentially the same terms as the Greenfields 2015 Agreement. Indeed, nearly all of the changes between the Greenfields 2015 Agreement and the Agreement reflect minor or technical variations and updates to existing terms and conditions.

[9] At the hearing of the approval of the Greenfields 2015 Agreement, the Senior Vice President of the (then) CFMEU – Mining and Energy Division (Mr Mitch Hughes) signed and submitted an F21 form (being a Statutory Declaration of an employee organisation in relation to an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Downer EDI Mining – Blasting Services Pty Ltd [2019] FWC 5615
Case: [2019] FWC 5615
Decision Date: 16 AUGUST 2019

CaseChat Overview and Summary

In the Fair Work Commission, Downer EDI Mining – Blasting Services Pty Ltd sought approval for a Queensland Coal Operations Agreement 2018. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was not a party to the agreement and did not represent the employees in the workplace. The CFMMEU sought to be heard generally under section 590 of the Fair Work Act 2009, raising 17 objections to the terms of the agreement, despite having previously agreed to essentially the same terms in a different agreement. The Commission considered the implications of the CFMMEU's status as a stranger to both the bargaining process and the workplace, and the potential impact of their objections on the approval process.

The legal issues the Commission had to address included the appropriateness of allowing a third party to raise objections to an enterprise agreement, the relevance of the CFMMEU's previous agreement to the current objections, and whether the Commission had considered all relevant factors in determining whether to approve the agreement. The Commission was required to assess whether all reasonable steps had been taken to facilitate genuine agreement, and whether the agreement met the better-off-overall test.

After detailed consideration, the Commission found that the CFMMEU's objections were not relevant to the approval process, given their status as a stranger to the agreement and the workplace. The Commission noted that the CFMMEU had not assisted in the approval process and had previously agreed to similar terms in a different agreement. The Commission was satisfied that all reasonable steps had been taken to facilitate genuine agreement and that the agreement met the better-off-overall test. The application for approval was ultimately approved, with the CFMMEU's request to be heard generally denied.

The final orders of the Commission included the approval of the Queensland Coal Operations Agreement 2018, with specific conditions attached to address certain concerns raised during the hearing. The CFMMEU's request to be heard was denied, and no further objections were considered. The approval was subject to the agreement being registered with the Registrar of the Fair Work Commission within the specified timeframe.

Orders