INTERIM DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Jan De Nul (Australia) Pty Ltd
(AG2016/4930)

DEPUTY PRESIDENT BINET

PERTH, 15 NOVEMBER 2016

Application in relation to AIMPE and AMOU standing to be heard.

[1] On 4 August 2016 Jan De Nul (Australia) Pty Ltd (Jan De Nul) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 185 of the Fair Work Act 2009 (Cth) (FW Act) for the approval of the Jan De Nul (Australia) Pty Ltd Enterprise Agreement 2016 (Proposed Agreement).

[2] On 4 August 2016 Jan De Nul sought that the personal identifiers of the individual bargaining representatives, including the individual who signed the Proposed Agreement for and on behalf of employees of Jan De Nul, be kept confidential.

[3] On 5 August 2016 a redacted version of the Proposed Agreement was filed with the FWC, with the identities of the individual bargaining representatives redacted.

[4] On 18 August 2016 the FWC received correspondence from the Australian Maritime Officers Union (AMOU) requesting that it be provided with a copy of the Jan De Nul Form F16 and Form F17 with a view to being heard as to the approval or otherwise of the Proposed Agreement by the FWC.

[5] On 23 August 2016 the FWC received correspondence from the Australian Institute of Marine and Power Engineers (AIMPE) requesting that it be provided with a copy of the Jan De Nul Form F16, Form F17 and any supporting documentation with a view to being heard as to the approval or otherwise of the Proposed Agreement by the FWC.

[6] On 27 September 2016, Jan De Nul advised the FWC that it did not consent to providing the redacted Forms F16 and F17 to the AMOU and the AIMPE and that it opposed the AMOU or the AIMPE being granted leave to be heard in relation to the Proposed Agreement.

[7] On 28 September 2016, the parties were issued with directions (Directions) which required Jan De Nul, the AMOU and the AIMPE to file submissions in respect of the necessity for a confidentiality order as well as in relation to the issue of whether the AMOU and the AIMPE have standing to be heard in relation to the Proposed Agreement.

[8] The Directions advised the parties that a determination in relation to the AMOU’s and the AIMPE’s standing to be heard in relation to the Application would be made on the written materials filed in accordance with the Directions unless the parties advised my Chambers by close of business on 31 October 2016 that they wish to make oral submissions.

[9] Jan De Nul and the AMOU (jointly with AIMPE) filed submissions in relation to both confidentiality and standing in accordance with the time frames provided in the Directions. A confidentiality order (PR586591) (Confidentiality…

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

Case: [2016] FWC 7991
Decision Date: 15 NOVEMBER 2016

CaseChat Overview and Summary

Jan De Nul (Australia) Pty Ltd applied to the Fair Work Commission for the approval of an enterprise agreement. The Australian Maritime Officers Union (AMOU) and the Australian Institute of Marine and Power Engineers (AIMPE) sought to be heard on the application. Jan De Nul opposed the AMOU and the AIMPE being heard in relation to the proposed agreement. The legal issues before the Deputy President were whether the AMOU and the AIMPE had standing to be heard in relation to the application and whether the AIMPE had established a basis upon which it should be invited to be heard under section 590 of the Fair Work Act 2009. The Deputy President found that the AMOU had standing to be heard in relation to the application as the Dredging Agreement contained specific clauses that created enforceable rights for the AMOU which would not otherwise exist. The Proposed Agreement did not contain equivalent provisions, thereby altering the rights and obligations of the AMOU vis-à-vis the employees. The AIMPE had not established a basis upon which it should be invited to be heard under section 590 of the Fair Work Act as it failed to provide persuasive submissions or sufficient credible evidence to warrant the exercise of the discretion which exists under the section. The Deputy President reserved his decision on the issue of standing and issued directions to provide for the final determination of the application.

Orders