Focus Offshore Services Pty Ltd

[2021] FWCA 4810

[2021] FWCA 4810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Focus Offshore Services Pty Ltd
(AG2021/5321)

FOCUS OFFSHORE SERVICES PTY LTD ENTERPRISE AGREEMENT 2021

Oil and gas industry
COMMISSIONER SPENCER	BRISBANE, 19 AUGUST 2021

Application for approval of the Focus Offshore Services Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise Agreement known as the Focus Offshore Services Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Focus Offshore Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

BACKGROUND

[2] During the course of the approval of the Agreement, despite not being a bargaining representative to the Agreement, Mr Zach Duncalfe, National Legal Officer of the Australian Worker’s Union (AWU/the Union) notified chambers that the AWU had concerns that the Agreement was not genuinely agreed to by employees. The AWU requested a copy of the documentation to determine whether it would seek to be heard in relation to the application.

[3] The Applicant’s views in relation to the AWU’s request were sought. The Applicant subsequently agreed to supply a redacted copy of the documents to the AWU, but objected to the AWU being heard in relation to the matter, as they were not a bargaining representative to the Agreement, and they rejected the claims made by the Union. A copy of the redacted documents was then sent to the AWU.

[4] After reviewing the documentation, the AWU wrote to chambers, expressing that they pressed their request to be heard pursuant to s.590 of the Act. The AWU submitted that s.590 is a discretionary power and that it is vital that the task of approving enterprise Agreements by the Commission, is not compromised by the approval of enterprise Agreements that the Commission did not have the legal capacity to approve. On this basis the AWU was requested to particularise any issues they had, relevant to the approval of the Agreement.

[5] The AWU responded that they are a principal union in the hydrocarbons industry and have constitutional coverage of all classifications covered by the proposed Agreement. The AWU stated that it is highly likely that, should the proposed Agreement be approved, members of the AWU will have the proposed Agreement apply to their employment. The Union argued that this provided them with a legitimate and reasonable interest in the application for approval of this Agreement. The AWU stated that they would be considered a ‘person aggrieved’ for the purposes of s.604(1) of the Act.

[6] Correspondence was issued requesting the Union to set out the basis specifically related to this Agreement, in which the Union considers it would be required to be heard. It was set out that this was required so the Applicant had forewarning prior to giving consideration to the listing of any hearing of the matter. The Applicant responded later that day, stating that they objected to the AWU being heard in this matter as a right, or under s.590.

SUBMISSIONS

Submissions from the AWU

[7] In response to directions, the AWU filed submissions regarding the basis of their request to be heard. The Union provided submissions addressing why they considered the Agreement had not been genuinely agreed to within the meaning of s.188 of the Act. The Union further argued that the Applicant had failed to provide an explanation of the Agreement, to the relevant employees, pursuant to s.180(5).

[8] The Union submitted that it held concerns that one or more of the employees who cast a vote in relation to the Agreement were not ‘employed at the time’ as required by s.181(1) of the Act. The AWU also submitted that they had concerns that there may be BOOT issues for at least one classification under the proposed Agreement. The nominated Award for the purposes of the BOOT was the Hydrocarbons Industry (Upstream) Award 2020.

[9] The Union also argued that the weekly ordinary hours in the proposed Agreement are 42 hours, which is four more than the NES maximum, and that the Applicant had incorrectly stated that the proposed Agreement did not provide a less beneficial entitlement for maximum weekly hours and had not provided an explanation in that regard.

CONSIDERATION

[10] In response to the Union’s concerns, the Applicant provided submissions, including a witness statement of Mr Paul Bacica, Managing Director of the Applicant, addressing the matters raised by the Union, which are considered below.

s.188 of the Act – Genuine Agreement – explanation of terms

[11] The AWU submitted that the Agreement had not been genuinely agreed to by employees within the meaning of s. 188 of the Act. The AWU believed that the Applicant had not taken all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to relevant employees as set out in s.180(5) of the Act. They stated that this concern was based on both the answers provided in the Form F17, filed with the application, and also the explanatory material provided to employees prior to the vote taking place.

[12] The Union further outlined that the Applicant had sent a copy of the Agreement, “a copy of the Award and an opportunity to contact the employers bargaining representative if an employee wanted a question answered”. As such, the AWU submitted that the Applicant failed to provide an explanation to the relevant employees pursuant to s.180(5). Additionally, the Applicant had stated that “employees were offered the chance to attend staff briefings in relation to the enterprise agreement”. The AWU submitted (on the information they had) that this was not evidence of an explanation or a factor to be taken into account pursuant to s 180(5).

[13] In response to the Union’s concerns, the Applicant submitted that the purpose of the obligation in s 180(5) is to take ‘all reasonable steps’ to explain the terms of the Agreement and their effect, thus enabling the employees to genuinely agree to its approval. The purpose of the provision is to ensure that the employees who are to vote on the Agreement are able to make an informed decision in relation to their vote.

[14] The Applicant submitted that what ‘reasonable step(s)’ constitutes as will vary from circumstance to circumstance and must be considered in the context of the relevant employee group, and the employer’s enterprise. Accordingly, the Applicant noted that the extent of the explanation required will depend on the knowledge, skills, and experience of that employee group.

[15] The Applicant stated that the requirement to take all reasonable steps does not extend to all steps that are reasonably open in a literal or theoretical sense. According to the Applicant, whether a step is ‘reasonable’ is to be assessed in the full context.

[16] The Applicant stated that an employer’s explanation of the terms and effect of those terms to employees may not be perfect, but still satisfy the requirement in section 180(5). The Applicant’s interpretation of section 180(5) is that it calls for a practical approach and does not compel an employer to provide a detailed explanation of each and every term of an Agreement, nor does it compel an employer to conduct a clause-by-clause comparison of the proposed Agreement and its predecessor.

[17] However, in meeting the obligation in this provision, the Applicant submitted that, at the commencement of the access period, all employees were emailed a copy of the Agreement, a copy of the Award and were provided with the contact details of the Applicant’s bargaining representative for the purposes of clarifying any queries they had in relation to the Agreement. The Applicant stated that this was not the only explanation provided to the employees.

[18] Mr Bacica’s witness statement included a detailed outline of the discussions that occurred with employees. The Applicant stated that this included the employees being contacted by telephone to discuss the Agreement during the Access Period. During these conversations, each employee was taken through the terms of the Agreement, and their effect was explained to the employees. Further, it was set out that the employees were provided, the further opportunity for questions, and those questions were answered.

[19] In addition to being contacted by telephone, the Applicant submitted that the employer had met individually with employees to discuss the Agreement. At these meetings, opportunities to ask questions and have those questions answered were provided.

[20] The Applicant further submitted that the AWU’s assertion that Appendix A was the only explanation provided to the employees in relation to the remuneration was entirely misguided, and reflective of the fact that they were not a party to the bargaining and could offer little assistance in this regard.

[21] Further to the discussions during bargaining regarding these provisions with the bargaining representatives, the Applicant set out that Mr Bacica, in his conversations with the employees during the access period, engaged in explanations with the employees about the remuneration provisions under the Agreement.

[22] The Applicant referred to the statement of Mr Bacica and submitted that the employees have significant experience in the Offshore Industry (14 to 32 years), and are comprehensively familiar with the terms and conditions of the underpinning Award: those being the terms currently applicable to their employment. Given this familiarity, Mr Bacica was able to explain how, and why, the remuneration had been set under the Agreement with reference to the market conditions, and the terms of the Award.

[23] The Applicant stated that a reasonable step to explain the terms and conditions of employment required an explanation of how the annualised salaries are calculated. The Applicant stated that these annualised rates were explained and are far in excess of those applicable under the Award, for similar work.

[24] It is considered that the documentation provided, the interactive discussions and explanation provided by the Applicant, were sufficient to meet the requirements of s 180(5), in the circumstances. Based on the Applicant’s submissions, I am satisfied that reasonable steps were taken by the Applicant in order to explain the terms and effect of the Agreement to the employees in accordance with s.180(5).

s.188 of the Act – Genuine Agreement – omitted entitlements

[25] The AWU submitted that the Agreement omitted allowances in the Hydrocarbons Industry (Upstream) Award 2020 (the Award) that would apply to the work undertaken by the Agreement and noted that the Applicant had failed to acknowledge this in the Form F17.

[26] In response, the Applicant stated that the Union’s argument was incorrect, as the formulation of the rates outlined in Appendix A of the Agreement were based on the Award provisions. The Applicant submitted that clause 23.5 of the Agreement sets out the minimum remuneration and what the rate includes compensation for. The Applicant stated that this clause contains specific references to the entitlements which the Union purports to have been omitted, including:

(a) Clause 23.5(b), which states “allowances” and covers the industry allowance;

(b) Clause 23.5(c) which states “living away from home allowance”;

(c) Clause 23.5(d) which states “all hours worked including on shifts, weekends and public holidays” and so encapsulated all overtime provisions; and

(d) Clause 23.5(e) which states “annual leave loading”.

[27] In terms of the omitted entitlements as argued by the Union, I am satisfied that clause 23.5 of the Agreement compensates for entitlements in the base rates of pay, which are significantly higher than the Award rate of pay, and further, that an explanation of such was provided to employees.

s.188 of the Act – Genuine Agreement – bargaining representatives

[28] The Union noted that there were two employee bargaining representatives, however no instruments of appointment had been filed with the Application. According to the AWU, on the evidence, these two employees were representing only themselves and not any other employee. They argued that this would mean that 7 of the 9 employees had no bargaining representative, which the AWU said is a factor that should have been taken into account by the Applicant for the purposes of s.180(5)(b).

[29] The Union’s assertion that there was no instrument of appointment is incorrect. A Form F18A was provided with the application, confirming that one of the employee bargaining representatives had been appointed to the role by one or more employees of the Applicant. It is considered that this matter does not raise an issue, as s.180(5)(b) states that the explanation is provided in an appropriate manner, taking into account the particular circumstances and needs of the relevant employees. As set out earlier, I am satisfied that the Applicant took all reasonable steps to ensure that the explanation was provided in an appropriate manner, taking into account the small size of the workforce and that individual discussion were also held with employees.

[30] The Applicant stated that all of the employees who participated in the ballot had worked on several projects for the Applicant, on an on-hire basis to the Applicant’s clients. It was submitted that these employees are very familiar with how the Applicant’s business operates, and terms and conditions contained within the Agreement as these terms and conditions were consistent with how the business already operated.

[31] It was further set out by the Applicant that Mr Schneider (as an employer bargaining representative) emailed employees a further reminder email, in relation to the ballot on 12 May 2021 and remaindered employees that if they needed any further information or had any questions that he was available via email or mobile. Mr Schneider confirmed that he did not receive any phone calls or emails from employees seeking further information or clarification.

s.188 of the Act – Genuine Agreement – comparison of rates

[32] The AWU submitted that the comparison of rates of pay provided by the Applicant to the employees showed only a comparison between the hourly and weekly rates of pay for Appendix B of the proposed Agreement and those in the Award. However, the Agreement has 31 clauses and three Appendices. The AWU, in general terms, submitted that this comparison omitted, for example, allowances payable under the Award, overtime rates, penalties and the industry allowance.

[33] It was further submitted by the AWU that the comparison also appeared to be inaccurate as the listed weekly rate of pay under the Award is the weekly rate of pay, without allowances, for a 38-hour week. The AWU submitted that the weekly rate of pay listed for the Agreement is the annualised salary divided by 52, a comparison which ignores the fact that the hours worked by employees are 12-hour shifts, 7 days a week during their on duty period. Therefore, the AWU noted that this comparison ignored the penalty rates that a worker would receive under the Award and “results in an inaccurate and misleading picture of the difference between the rates of pay”. Additionally, it was also submitted that the comparison did not include the onshore rates of pay in Appendix A of the Agreement, the allowances in Appendix C of the Agreement and generally they stated that the entire balance of the Agreement.

[34] The AWU noted in summary terms that a reasonable ground of concern within the meaning of s.188(1)(c), was the large number of classifications and broad scope of the Agreement in comparison to the number of employees who were invited to vote on the Agreement. The AWU submitted that this was further concerning when combined with the provision of information by the employer that was allegedly misleading, notably the ‘Appendix A – Salary Arrangements’ document.

[35] In response to the AWU’s concerns, the Applicant, through the witness statement of Mr Paul Bacica, confirmed that the employee’s skills and experience in the offshore industry ranges between 14 to 32 years’ experience, and they had the ability to cover all relevant classifications in the proposed Agreement. Mr Bacica further stated that in his conversations with the employees during the access period, that he engaged in discussions with the employees regarding the remuneration under the proposed Agreement.

[36] Mr Bacica further set out in his statement, that the employees have significant experience in the Offshore Industry (14 to 32 years), and are comprehensively familiar with the terms and conditions of the Award: those being the terms currently applicable to their employment. Given this familiarity, Mr Bacica stated that he was able to explain how, and why, the remuneration had been set under the Agreement, with specific reference to the market conditions, and the terms of the Award.

[37] The Applicant stated that the reasonable step, to explain the terms and conditions of employment, and how these will alter the employees’ current and future terms (as the employees are currently covered by the Award), required an explanation of how the annualised salaries are calculated. The Applicant confirmed that these rates are far in excess of those applicable under the Award for the Applicant’s envisaged and known work scopes.

[38] On this basis I am satisfied that the relevant employees have a thorough understanding of the classifications in the Agreement, and that the terms, specifically the wage rates, were explained to the employee’s and that genuine agreement was achieved, in accordance with s.188 of the Act.

s.181(1) of the Act – Entitlement to vote – casual employees

[39] The AWU noted that the Agreement covered 9 employees. The AWU submitted, based on the redacted version of the Form F17, that it simply assumed most of the employees, if not all, were engaged on a casual basis. Due to this, and the intermittent nature of the work that the Applicant and others like it in the sector can secure, the AWU submitted that it may be likely that one or more of the employees who cast a vote in relation to the Agreement were not ‘employed at the time’ as required by s.181(1) of the Act. Again, this was supposition by the Union. The employer had provided an affidavit setting out the number of employees.

[40] Further, in response to this concern, Mr Bacica, as Managing Director of the Applicant, confirmed in his witness statement, on behalf of the Applicant, that all employees who voted on the Agreement were employed at the time of the vote.

[41] Having considered the Union’s assumption and the Applicant’s direct response, I am satisfied that all employees who voted on the Agreement, were employed at the time of the vote, for the purposes of s.181(1) of the Act.

Weekly Hours Less Beneficial than the NES

[42] The Union also stated that the weekly ordinary hours in the proposed Agreement are 42 hours, which is four more than the NES maximum. Therefore, the Union submitted that the Applicant had incorrectly stated that the proposed Agreement did not provide a less beneficial entitlement for maximum weekly hours and had not provided an explanation in that regard.

[43] The Applicant submitted that clause 19 (Hours of Work) of the Agreement had been incorrectly identified by the Union as less beneficial than the NES. According to the Applicant, the AWU had incorrectly interpreted clause 19.4 of the Agreement as stating that the number of ordinary hours per week as 42. The Applicant further submitted that even if it were to be considered less beneficial, the Agreement contains a NES precedence clause, at clause 2.6 of the Agreement, which would resolve any issue. The provision states:

“This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.”

[44] The employer’s response on this issue was that it is considered that the Union’s NES objection is misconceived, in that clause 19.4 provides that the ordinary hours of work will be based on a 38 hours per week averaged over the roster cycle, plus 4 additional hours per week above this. This is not less beneficial than the NES, as the ordinary hours are 38 hours. The additional 4 hours may be considered as ‘reasonable additional hours’ per s.62(1) and s.62(3) of the Act. Further, the NES precedence clause at 2.6 of the Agreement serves to effectively resolve any NES inconsistencies within the agreement, should they arise. The renumeration comparison, (taking into account 42 hours per week) confirmed the rates are higher.

BOOT

[45] The AWU also submitted that they had general concerns that there may be BOOT issues for at least one classification under the proposed Agreement, however despite a direction to set out any specific concerns they held with the Agreement, the Union failed to enunciate or provide reference to any specific classification or BOOT concern.

[46] The Applicant had addressed BOOT concerns raised in response to the initial directions for this matter by way of undertakings. It is considered that the undertakings provided resolve any BOOT concerns. Having conducted a further BOOT analysis on the Agreement, taking into account the concerns raised, I am satisfied in this regard.

Whether the AWU should be heard

[47] The AWU submitted that they had a right to be heard in relation to this application, pursuant to s.590 of the Act, and that the Commission would benefit from the AWU’s participation in the approval process as a contradictor. Given the Union’s general submission regarding their right to be heard, specific submissions in relation to the Agreement were sought from them on two separate occasions.

[48] The Applicant maintained their objection to the AWU being heard in this application, on the grounds that they considered the Union was a complete stranger to this bargaining process, as it was not a bargaining representative for the proposed Agreement and held no relevant knowledge or information about the making of the proposed Agreement that would otherwise assist the Commission in its consideration of this application.

Union’s submissions on s.590

[49] The AWU argued that in considering the exercise of the s.590 discretion, it is a relevant matter whether a registered organisation of employees would be able to assist the Commission to better perform its functions under Part 2-4 of the Act. The AWU noted that the Commission has regularly exercised this s.590 discretion to invite registered organisations to make submissions to assist in approval functions. The Union were invited to much such specific submissions.

[50] The AWU submitted that it is the principal union in the hydrocarbons industry and has constitutional coverage of all classifications covered by the proposed Agreement. It was further submitted that it is highly likely that, should the proposed Agreement be approved, members of the AWU will have the proposed Agreement apply to their employment, in the future. The AWU argued that this demonstrated that the Union has a legitimate and reasonable interest in the application for approval of this Agreement.

[51] As the principal Union in the offshore hydrocarbons sector, the AWU stated that they are keenly informed about the sector generally, and of both developments and issues within the sector. Particularly over the past two years, the AWU stated that they have committed significant resources to addressing what their members believe to be the most important issues facing workers in this industry.

[52] The AWU argued that the principal issue facing the hydrocarbons sector is the behaviour of the vast majority of contracting companies in the sector in securing enterprise Agreements with the lowest rates of pay and other conditions possible in order to undercut their competition. The Union submitted that a common feature of the processes by which these enterprise Agreements are secured by employers in the industry, is a failure by the employer to explain the terms of the Agreement to employees and the provision of potentially misleading information about the Agreement to employees prior to the vote. The Union alleged that in the present matter, the employer appears to have failed to explain the terms of the Agreement and also provided misleading information regarding the proposed Agreement’s supposed superiority to the underpinning Award.

[53] The AWU submitted that the Agreement is a baseline enterprise agreement, with the rates of pay having been set by the company with the sole intention of having the agreement pass the better off overall test and are not at all reflective of the industry rates of pay that comparable companies in the sector pay. The AWU argued that the result of baseline enterprise Agreements is inevitably a reduction in the terms and conditions of workers in the sector as a whole. The AWU argued, that as the principal union in the sector and one of the two unions responsible for the recent sharp increase in union-negotiated Agreements in the sector that deliver stronger working conditions, they hold a legitimate interest in the terms and conditions of work in the sector, not least of all the maintenance and improvement of such standards.

[54] The AWU further argued, that as a knowledgeable industry participant, the Union could assist the Commission in efficiently and effectively discharging its functions under Part 2-4 of the Act. The AWU alleged that in the present matter, the employer has applied for the approval of a baseline Agreement in circumstances where there is no evidence of any bargaining actually occurring and there are reasonable and genuine concerns that the pre-approval steps that the employer must take in order for the Agreement to be lawfully approved have not been met. The Union submitted that the Commission has regularly exercised the s.590 discretion to invite registered organisations to make submissions to assist in approval functions and in the present matter, the Commission is likely to benefit from a contradictor.

[55] The AWU further submitted that it has a legitimate and understandable interest in the application for the approval of the proposed Agreement and is an experienced participant in the industry in which the proposed Agreement purports to operate.

Applicant’s submissions on s.590

[56] The Applicant submitted that the Agreement was made between the Applicant Employer and its employees, who had considerable experience in offshore drilling. The Applicant submitted that the employees voted in support of the Agreement, by a clear majority. The Applicant noted that the AWU did not participate in the Agreement-making process and did not identify with any employee member who was involved in the making of the Agreement. The Applicant further submitted that the AWU’s request to be heard, due to its representation of industrial interests in the offshore drilling industry, and presumably the fact that, an employee of the Applicant may be a member of the AWU, was not a sufficient basis to establish that it had standing to be heard.

[57] Additionally, the Applicant stated that the AWU’s submissions were not sufficient to establish grounds to be heard under s.590. The Applicant argued that the exercise of the Commission’s discretion under s.590 involves an evaluative judgment as to what is required in the specific case to ensure procedural fairness is afforded to the parties. The Applicant stated that in the decision of CFMMEU v Collinsville Coal Operations Pty Ltd, 1 the Full Bench noted:

“that an employee organisation has an ongoing relationship with its members who might become covered by an agreement and has a role under its rules in representing those members is not relevant in the context of a right to be heard in relation to the approval of an agreement.”

[58] The Applicant submitted that there was no unusual characteristics within their matter that would justify a departure from these principles. The Applicant further submitted that the AWU provided no authority to establish that the Commission should exercise its discretion to allow it to be heard pursuant to s.590 of the Act.

[59] The Applicant accepted that the absence of a contradictor may in certain cases warrant leave being granted. However, according to the Applicant, this did not apply to the current matter. The Applicant submitted that, without particularising any issues, the AWU’s ‘concerns’ appear to relate to whether the Agreement was genuinely agreed to by the employees, whether the Agreement passed the ‘BOOT’ and whether the Agreement was consistent with the National Employment Standards and the Act. The Applicant stated that these are matters which the Commission can adequately address without granting leave to a third-party intervener.

[60] According to the Applicant, the AWU’s submission amounted to an assertion that the absence of a contradictor, of itself, warranted a grant of leave. The Applicant refuted this assertion, as, were this the case, Parliament would have enacted provisions granting a right of intervention to Union’s with constitutional coverage of employees to be potentially covered by the Agreement, or at the very least, an obligation for employers to notify such Unions of approval applications.

[61] The Applicant submitted that Parliament had, instead, enacted a regime dealing with the making and approval of enterprise Agreements, which was intended to provide a simple, flexible and fair framework that enables collective bargaining in good faith, and to facilitate the making of enterprise Agreements through the Commission to ensure that the approval of enterprise Agreements is dealt with without delay.

[62] As such, the Applicant submitted that granting leave for a third-party intervener to appear would unjustifiably prolong the approval process.

[63] The Applicant submitted that the AWU was seeking leave to be heard with reference to objections on the approval of the Agreement. The Applicant submitted that, whilst the Commission can consider these objections if the AWU is granted leave, these reasons cannot be used in order to justify the granting of leave itself.

[64] The Applicant denied the AWU’s general submission that the Agreement was a “baseline enterprise agreement”, with the rates of pay set by the company “with the sole intention of having the agreement pass the better off overall test and are not… reflective of the industry rates of pay that comparable companies in the sector pay.” The Applicant noted that the Agreement was consistent with terms in the Atlas Programmed Marine (Australia) Pty Ltd Drilling Enterprise Agreement 2019 (Atlas Agreement), 2 which covered the AWU and was approved by the Commission. Furthermore, the Applicant submitted that the rates of pay in the Agreement are higher than those within the Atlas Agreement. The Applicant provided a comparison of the rates in the Agreement and the Atlas Agreement to support this.

[65] The Applicant submitted that, in light of the above, the AWU should have no further involvement in the approval process. Alternatively, if any involvement was granted under s.590, the AWU’s involvement should simply be limited to the Commission considering their earlier written submissions.

CONSIDERATION

[66] The Full Bench in Collinsville, 3 dealt with the rights of employee organisations in relation to enterprise Agreements, for which they are not bargaining representatives. The relevant extracts of the decision are as follows:

“[48] It is accepted that the FW Act does not provide for intervention in proceedings before the Commission by a non party. Section 590 of the FW Act provides, relevantly that the Commission may, except as provided by the FW Act, inform itself in relation to any matter before it in such manner as it considers appropriate, including by inviting, subject to any terms and conditions determined by the Commission, oral or written submissions.

[49] The CFMEU says that it was not necessary for it to have been a party to the proceeding in order to have a right to be heard. It says that it was sufficient that it had some right, interest or legitimate expectation that might be affected by the proceeding. Consequently, it says that it should have been afforded procedural fairness by the Senior Deputy President and that by being prevented from putting its case in opposition to the approval of the Agreement it was denied procedural fairness.

…

[54] As to the CFMEU’s rights that are said to be affected, the CFMEU submitted, in summary, that the decision to approve the Agreement will affect its right to represent employees at the mine and for these employees to be members of the CFMEU. Further, it will affect its capacity to protect terms and conditions of employment. Other rights relied in by the CFMEU are identified earlier and are not reproduced here.

[55] In our view this argument has no substance. Firstly, the argument presupposes that the CFMEU has some particular right which will be taken away or interfered with, if the Agreement is approved. The CFMEU’s entitlement to represent the industrial interests of employees at the Collinsville coal mine is to be derived from the CFMEU’s rules. The approval of the Agreement will not interfere with that. Before the Agreement was approved the terms and conditions of the employees covered by the Agreement were determined, inter alia, by the Black Coal Mining Industry Award 2010, the applicable modern award. Under the dispute settlement procedure of the modern award the CFMEU has no particular right of representation. Representation may be sought by employees in relation to disputes and in relation to consultation. Under the modern award employees choose their representation. They may choose the CFMEU. That position is not changed by approval of the Agreement. Employees may choose to be represented by the CFMEU in disputes under the Agreement and in consultation matters. In any event such rights are vested in the employees not in the CFMEU. The Modern Award is not a respondency award made in settlement of an interstate industrial dispute involving the CFMEU. The statutory basis and constitutional underpinning of modern awards are significantly different to awards made under predecessor legislation in settlement of disputes.

[56] Secondly, the Agreement does not affect the rights of an employee covered by it to choose whether he or she wishes to join, continue to be or cease to be, a member of the CFMEU.

[57] Thirdly, the approval of the Agreement does not affect the right of the CFMEU to be involved in bargaining for any successor or replacement agreement, nor does it affect the right of the CFMEU to represent employees more broadly engaged in the coal mining industry or to advocate for improvements to the terms and conditions under which those employees are employed.

[58] Fourthly, the approval of the Agreement does not affect the capacity of an officer of the CFMEU who is a permit holder under the FW Act to investigate suspected contraventions of the FW Act or of the terms of the Agreement. Nor does it affect the capacity of the permit holder to enter Collinsville’s premises for the purposes of holding discussions with employees.

[59] Fifthly, to the extent that it was suggested that the CFMEU’s capacity to represent employees and protect their interests under the Coal Mining Safety and Health Act 1999 (Qld) and the Coal Mining Safety and Health Regulation 2001 (Qld) is undermined or taken away by the approval of the Agreement, that proposition is rejected. As s.29 of the FW Act makes clear, an enterprise agreement applies subject to, and does not prevail over, a State law dealing with occupational health and safety matters. Such rights or interests as the CFMEU may have under those laws are clearly unaffected by the approval of the Agreement.

[60] Sixthly, the CFMEU’s reliance on rights that it had under agreements which previously applied to work at the Collinsville coal mine is misconceived in that whatever else might be said about the content of those agreements, they did not cover the employees who are now covered by the Agreement when the agreement was made and they did not cover Collinsville. Consequently the CFMEU had no particular right under those agreements vis-a-vis the employees or Collinsville, and so no right of the CFMEU is affected by the approval of the Agreement.

…

[65] In our view the right, interest or legitimate expectation that is said to be affected by application of the kind before the Senior Deputy President must be identified and understood against the framework of enterprise bargaining and agreement making established by the FW Act. It is not enough, without more, to point to the status of the CFMEU as an employee organisation with a history of representation at the workplace or in the industry. Moreover, this is not a case where some of the members of the CFMEU voted against the approval of the Agreement or did not vote at all. All of the employees covered by the Agreement voted, and all of those employees (including Employee 2) voted in favour of approving the Agreement.

[66] The statutory framework includes that enterprise agreements are made principally between an employer and employees; that bargaining representatives have a role in relation to enterprise bargaining either by default or by appointment; that default bargaining representatives can be displaced by appointment or by revocation; that enterprise agreements operate primarily at the single enterprise level and do not create rights of general application across an industry or have common rule application; that rights of an employee organisation to be involved in the bargaining process under the FW Act is not separate from its standing as a bargaining representative; and that its capacity to be involved in protected industrial action by seeking a protected action ballot authorisation cannot be separated from its standing as a bargaining representative.

…

[69] That an employee organisation has an ongoing relationship with its members who might become covered by an agreement and has a role under its rules in representing those members is not relevant in the context of a right to be heard in relation to the approval of an agreement. The FW Act does not confer a right on employee organisations (other than in the case of the greenfields agreement) to be covered by an agreement if it was not a bargaining representative. Likewise, the FW Act does not confer upon an employee organisation a role in enterprise bargaining under the FW Act outside of its status as a bargaining representative. 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.

[70] In similar vein, that an employee organisation has amongst its interests, objects or expectations, that it will obtain and maintain reasonable employment conditions for its members, is in the context of the bargaining framework established by the FW Act, an insufficient basis for there to arise a right, interest or legitimate expectation and thereby a conferral on the employee organisation of a right to be heard in relation to an application to approve an enterprise agreement.

[71] Account should also be taken of the fact that enterprise agreements may confer or deal with the rights and obligations of an employee organisation vis-a-vis the employees and that a new agreement might displace or alter those rights and obligations, but that is not the case here.

[72] 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 circumstances in each case. In this case, when the rights, interests or expectations asserted by the CFMEU are understood in the legislative context, it is clear that the CFMEU has not established any right, interest or legitimate expectation that would be adversely affected by the decision to approve the Agreement which would give it a right to be heard.

[73] We are therefore not persuaded that the Senior Deputy President erred in not giving the CFMEU the opportunity to be heard or to lead evidence in relation to its opposition to the approval of the Agreement.”

[Endnotes omitted] (emphasis added)

[67] Based on the submissions outlined above and the principles in Collinsville, 4 I am not satisfied that the AWU has established any right, interest or legitimate expectation that requires the AWU to be heard. Further, in coming to this conclusion, specific submissions regarding their concerns with the Agreement, were sought in response to two pieces of correspondence and these have been considered. I am not satisfied that the AWU would be adversely affected by the decision to approve the Agreement which would give it a right to be heard. Furthermore, I am not satisfied that the AWU’s assertion that absence of a contradictor, of itself, warrants a grant of leave.

[68] Additionally, the Agreement does not affect the rights of an employee covered by it to be a member of the AWU and the approval of the Agreement does not affect the right of the AWU to be involved in bargaining for any successor or replacement Agreement, nor does it affect the right of the AWU to represent employees.

[69] The AWU has been invited on two separate occasions to particularise their concerns with the approval of the Agreement, and have provided responses in turn. Each matter raised by the AWU has been addressed by the Applicant, by way of an undertaking or submission, and having considered all of these responses, I am satisfied that the responses provided by the Applicant do not provide an impediment to support the approval of this Agreement.

CONCLUSION

[70] Subject to matters that have been addressed by way of undertakings, 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.

[71] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[72] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 August 2021. The nominal expiry date of the Agreement is 19 August 2025.

[73] I Order accordingly.

COMMISSIONER

 1 (2014) 246 IR 21 at [69].

 2   [2021] FWCA 520.

 3   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940.

 4   [2021] FWCA 520.

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