Inco Ships Pty Ltd

[2016] FWC 1637

[2016] FWC 1637

INTERIM DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Inco Ships Pty Ltd
(AG2015/6927)
COMMISSIONER CAMBRIDGE	SYDNEY, 16 MARCH 2016

Application for approval of the Inco Ships Pty Ltd Officer Collective Agreement 2015

Shipping Services.

[1]        This Interim Decision concerns a preliminary issue arising in respect to an application

for approval of an enterprise agreement known as the Inco Ships Pty Ltd Officer Collective

Agreement 2015 Shipping Services (the Agreement). The application was made pursuant to

s.185 of the Fair Work Act 2009 (the Act). It has been made by Inco Ships Pty Ltd (Inco). The

Agreement is a single-enterprise agreement.

[2]        The application, made in the prescribed Form F16, was lodged at Melbourne on 9

December 2015. The application included a Statutory Declaration made in the prescribed

Form F17, of Cassandra Konnecke, made on behalf of Inco and dated 8 December 2015 (the

F17 Declaration). The F17 Declaration stated that the Agreement was made on 8 December

2015. Therefore, the application was lodged within the 14 day time limit established by

subsection 185 (3) of the Act.

[3]        On 21 December 2015, the Fair Work Commission (the Commission) received an

email communication from The Maritime Union of Australia (the MUA) which advised, inter

alia, that the MUA sought to be heard in respect to the application for approval of the

Agreement. In addition, the MUA sought to be provided with copies of the F16 application,

the F17 Declaration, and any F18 Statutory Declarations which had been made in respect to

the application. On the same day, at my direction, my associate provided the MUA with

copies of the F16 and F17 documentation, and advised that, at that stage, there had been no

F18 documents filed in the matter.

[4]        On 22 December 2015, the Commission received an email communication from The

Australian Institute of Marine and Power Engineers (the AIMPE) which referred to the

application for approval of the Agreement, and relevantly requested that the AIMPE be

provided with copies of the F16 and F17 documentation. On the same day, 22 December, my

associate, in accordance with my directions, provided the F16 and F17 documentation as

requested by the AIMPE.

[5]        On 24 December 2015, the Commission received F18 Statutory Declarations made

respectively on behalf of The Australian Maritime Officers’ Union (the AMOU) and the

AIMPE. The F18 Statutory Declarations of the AMOU and the AIMPE contained
[2016] FWC 1637

substantially similar terms, and relevantly stated that, in each instance; the Union was a

bargaining representative for the Agreement; the Union did not support the approval of the

Agreement by the Commission; the Union disagreed with various aspects of the contents of

the F17 Declaration and the Union gave no indication as to whether it sought to be covered by

the Agreement.

[6]        In view of the identified issues of contest, the matter was listed for Mention and

Directions proceedings on 25 January 2016. Ms S Zeitz, lawyer, appeared for Inco, Mr N

Niven appeared for the AIMPE, Ms J Thompson appeared for the AMOU, and Mr P Garrett

appeared for the MUA. During the proceedings held on 25 January, Inco challenged that none

of the Unions which appeared, the AIMPE, the AMOU and the MUA, (collectively “the

Unions”) had the status of being a bargaining representative in respect to the Agreement.

Therefore, Inco asserted that none of the Unions had standing in the matter. Inco said that

none of the Unions were entitled to appear and/or be heard in respect to the application for

approval of the Agreement.

[7]        In the course of the proceedings on 25 January, the Commission noted that there were

some apparent deficiencies with the Notice of Employee Representational Rights (NERR) that

had been provided with the F17 Declaration. Ms Zeitz indicated that the apparent deficiencies

with the NERR could be addressed, and she indicated that a further Statutory Declaration

would provide for rectification of the apparent deficiencies with the NERR.

[8]        On 25 January, the Commission identified that there were a variety of aspects of

contest between the Parties. However, the matter was programmed for Hearing to deal with

both the preliminary question as to the standing of each of the Unions, and the more general

issues regarding the application for approval of the Agreement. Unfortunately, further dispute

between the Parties has meant that the preliminary question as to the standing of each of the

Unions has required determination separate to, and before consideration of any matters of

contest regarding the approval of the Agreement. Consequently, the question as to the

standing of each of the Unions was the subject of a Hearing conducted on 3 March 2016.

[9]        On 3 March 2016, the AIMPE provided evidence and submissions in support of it

being granted standing in the matter. Both the AMOU and the MUA also provided oral

submissions in elaboration of written material, which had been filed on behalf of each of the

respective organisations. Inco made oral submissions in amplification of written material that

it had provided as the basis for opposition to any of the Unions being granted standing in the

matter, such as they would be heard.

[10]      In the course of the proceedings on 3 March, the Commission noted that the

information provided in the F17 Declaration concerning the access period for the Agreement

appeared not to be compliant with, particularly ss. 180 (2) and 180 (3) of the Act. Ms Zeitz

indicated that the apparent difficulties with the access period issues could be addressed, and

she indicated that a further Statutory Declaration would provide for potential rectification of

the apparent non-compliance in respect to the access period.

[11]      Ms Zeitz advised that information provided on the Commission’s website may have

misled Inco into error regarding the provision of certain information during the access period,

rather than before the start of the access period. However, Ms Zeitz indicated that there were

particular circumstances, including that there had been an earlier vote in respect to the

Agreement, which was repeated when it was discovered that some employees “had not
[2016] FWC 1637

received the email conferred with the voting arrangements.” Ms Zeitz said that the advice

which was provided for the “second” vote, upon which the Agreement was made, involved

the provision of information that the process would be repeated and would therefore be

sufficient to enable compliance with the requirements of s. 180 of the Act.

[12]      Also during the proceedings on 3 March, some concerns emerged about the

circumstances of the employment of those employees at the time that they were requested to

vote to approve of the Agreement, either at the first or subsequent ballot. Further, there was a

suggestion that the vote to approve of the Agreement had not occurred on the date indicated in

the F17 Declaration, and it appeared that voting records may have been destroyed “to ensure

the privacy of individuals who had voted.”

[13]      The Parties have provided the Commission with some further material in accordance

with a 7 day time period following the Hearing held on 3 March 2016.

Consideration

[14]       At the outset, I confirm that taking into account the complexity of the matter,

representation by lawyers or paid agents would enable the matter to be dealt with more

efficiently. Consequently, I am satisfied that the requirements of s. 596 of the Act have been

met and permission is granted for lawyers or paid agents to represent any person or

organisation appearing in the matter.

[15]      During the Hearing held on 3 March, it became apparent that neither the AIMPE nor

the AMOU asserted that their respective organisations were bargaining representatives as

contemplated by s. 176 of the Act. This position was established, despite the earlier

indications made by both the AIMPE and the AMOU in their respective F18 Statutory

Declarations to the contrary. At no stage has the MUA asserted that it was a bargaining

representative for the Agreement.

[16]      Each of the Unions sought standing in the matter by virtue of the discretion provided

to the Commission under s. 590 of the Act. Each of the Unions made submissions which, in

broad terms, relied upon a series of Full Bench Decisions of both Fair Work Australia and the

Commission which recognised that in matters involving contested approval of enterprise

agreements, registered organisations which have or are likely to have, members working in

the industry or occupations covered by a particular enterprise agreement, have established

standing to be heard.

[17]      In this regard, a line of Authority has established that organisations which are

registered in, or in connection with the industry or occupations covered by an enterprise

agreement, will generally be accepted to be a person aggrieved by a Decision to approve of

that enterprise agreement, such that they would be granted standing. This line of Authority

can be broadly traced with reference to the cases of; The Australian Institute of Marine and

1  2

Power Engineers v Inco ships Pty Ltd and; CEPU v Main People (Main People) and;

3  4

CEPU v Sustaining Works and, more recently; TWU v ALDI Foods (Aldi).

[18]      The following extract from the Decision in Aldi is relevant:

“…Full Benches of the Commission have accepted the standing of organisations to

appeal against decisions to approve agreements. In CEPU v Main People, neither

[2016] FWC 1637

union was a bargaining representative for the Agreement and nor was there any

evidence that any employee of the respondent at the time of the vote to approve the

Agreement was a member of either union. Further there was no evidence that any

subsequent employees of the respondent had asked the appellants to represent their

interests in relation to the Agreement. Nevertheless the Full Bench determined that the

5

unions were persons aggrieved and had standing to institute the appeal.”

[19]      Against this line of Authority, Inco argued that another Full Bench Decision in the

6

matter of CFMEU v Collinsville Coal (Collinsville) firmly rejected that employee

organisations had a right to be heard in relation to an application to approve an enterprise

agreement, simply because of their industry or occupational representational role. The

following extract from the Decision in Collinsville was emphasised in the submissions made

by Inco:

“…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

7

application to approve an enterprise agreement.”

[20]      The Decision in Collinsville was issued about 10 days after the Decision in Main

People, and in reference number 13 of the Collinsville Decision, mention is made of the

Decision in Main People. Reference 13 of the Collinsville Decision relevantly includes the

following consideration:

“We note that in CEPU and AMWU v Main People Pty Ltd [2014] FWCFB 8429 a

Full Bench of the Commission determined that a right to represent employees under

the terms of the agreement and the likelihood that members of the appellant unions

would in the future be employed under the agreement resulted in the appellants having

standing to institute the appeal as those factors gave the appellants an interest beyond

that of an ordinary member of the public. We would observe that in the context of the

statutory scheme established for agreement making and approval, the question

whether a person should be heard during an application to approve an agreement is a

different question whether a person is aggrieved by a decision for the purposes of

bringing an appeal. For the reasons set out at [70] of our decision, we do not regard

the possibility or even likelihood that members of an employee organisation might in

the future be employed under the agreement as grounding a right to be heard. Nor

does that fact that employees covered by an agreement might choose to be represented

by the employee organisation under particular terms of the agreement give rise to a

right to be heard. The right of representation under the terms of an agreement resides

with the employee, not the organisation or person selected by the employee to provide

representation.”

[21]      Consequently, a distinction appears to have emerged between, on the one hand, the

absence of any right of standing for a relevant registered organisation under the statutory

scheme in respect to first instance proceedings involving the approval of an enterprise

agreement, in contrast with, on the other hand, the standing provided to that registered

organisation as an aggrieved person in any Appeal proceedings taken against the first instance

Decision to approve (or refuse) of the enterprise agreement. The corollary of this distinction,
[2016] FWC 1637

in a practical sense, would appear to mean that a registered organisation might be denied

standing at the first instance Hearing of an application to approve an enterprise agreement, but

likely be granted standing in any subsequent Appeal proceedings.

[22]      In my view, the practical consequences of the absence of standing of registered

organisations as interveners in proceedings involving the approval of enterprise agreements,

and their standing in any subsequent Appeals taken against approval Decisions, is something

of an untidy state of affairs. In respect to the circumstances in this matter, it is clear from the

Decision in Collinsville that none of the Unions have a right to be heard in the present

proceedings. However, the AIMPE and the AMOU would be likely to be granted standing as

aggrieved persons in any Appeal taken against any Decision which approved of the

Agreement.

[23]      In the present circumstances, the position of the MUA is slightly different to that of

the other two Unions. The Agreement contains classifications for officer and engineering

grades and it does not include able-seaman, integrated ratings, or other classifications that

would normally be regarded as within the coverage of the MUA. Although the MUA might

dispute any apparent restriction in respect to its capacity to enrol and represent persons who

were in officer and/or engineering grades, the coverage of the Agreement would appear to

deliberately exclude persons ordinarily engaged in work historically the province of the

MUA. Further, Inco has apparently been engaged in separate discussions with the MUA

regarding a separate enterprise agreement that would cover integrated ratings and similar

classifications.

[24]      Notwithstanding what I have described as the untidy position that has emerged in

respect to the standing of registered organisations at different stages of enterprise agreement

approval proceedings, it is clear that the Commission has a broad discretion provided by s.

590 of the Act, to permit persons and/or organisations to appear before it and provide

evidence and/or oral or written submissions.

[25]      There are unresolved issues of concern regarding the pre-approval process and the

better off overall test (BOOT) which have been identified. These concerns may very well be

resolved, as has emerged with the apparent deficiencies with the NERR. The Commission is

required to ensure that the Agreement complies with the Act, and the resolution of the

concerns which have been identified should be conducted with transparency and appropriate

rigour. Registered organisations with a legitimate interest in the industry and occupations

covered by the Agreement may assist in the resolution of these issues of concern. In this way,

a process involving open, diligent and comprehensive scrutiny should provide for the correct

outcome, and also enhance broader confidence in the Commission’s enterprise agreement

approval role.

[26]      In the particular circumstances of this matter, I have decided to grant standing for the

AIMPE and the AMOU as interveners in the matter. Thus, the AIMPE and the AMOU shall

be entitled to appear and be heard in respect to the proceedings. The AIMPE and the AMOU

shall be provided with an opportunity to scrutinize the issues of concern which have been

identified. An earnest examination of these issues would assist the Commission in the

discharge of its statutory function.

[27] Given that the coverage of the Agreement specifically excludes classifications which

have been historically represented by the MUA, I have determined that it would not be
[2016] FWC 1637

appropriate to provide standing to the MUA. Therefore, the request made by the MUA to be

heard in the matter is refused.

[28]      In order to provide for further Hearing of the application, the AIMPE and the AMOU

are each directed to file and serve all evidence and submissions upon which each of the

organisations relies, within three weeks from the date of this Decision. Inco will be provided

with a further three weeks to file and serve any evidence and submissions that it wishes to rely

upon. The further Hearing of the matter will be scheduled for 10 am on 4 May 2016.

COMMISSIONER

Appearances:

Ms S Zeitz, solicitor for Inco Ships Pty Ltd.

Mr N Niven for The Australian Institute of Marine and Power Engineers.

Ms J Thompson for The Australian Maritime Officers’ Union.

Mr P Garrett for The Maritime Union of Australia.

Hearing details:

2016.

Sydney and Melbourne (video hearing):

March 3.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578011>

1

The Australian Institute of Marine and Power Engineers v Inco Ships Pty Ltd [2011] FWAFB 1537.

2

CEPU v Main People [2014] FWCFB 8429.

3

CEPU v Sustaining Works [2015] FWCFB 4422.

4

Transport Workers' Union of Australia & Anor v ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited

Partnership) [2016] FWCFB 91.

5

Ibid @ [22].

6

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

7

Ibid @ [70].