Jan De Nul (Australia) Pty Ltd

[2016] FWC 7991

[2016] FWC 7991

FAIR WORK COMMISSION

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 Order) and accompanying decision ([2016] FWC 7528; PR586593) was subsequently issued on 28 October 2016.

[10] On 31 October 2016, the AMOU and the AIMPE submitted a request to make oral submissions in relation to standing and the Confidentiality Order. The matter was subsequently listing for Hearing in relation to these interim issues on Friday 4 November 2016.

[11] At the Hearing the parties were provided with the opportunity to make oral submissions in respect of both the standing issue and the Confidentiality Order. At the conclusion of the Hearing, and for the reasons articulated at the Hearing and captured in transcript, the AMOU’s and the AIMPE’s request to have the Confidentiality Order amended or revoked was denied. The parties were advised that a decision in relation to the issue of standing was reserved.

Consideration

[12] In their submissions, the AMOU and the AIMPE sought permission to be heard as full participants in the matter. Jan De Nul objected to either union being heard in any capacity.

[13] There are four potential avenues by which an employee organisation might establish standing to be heard in relation to an application for approval of an agreement:

(a) As a bargaining representative of one or more employees to be bound by the proposed agreement. 1

(b) As a matter of procedural fairness if the employee organisation is able to establish a right, interest or legitimate expectation that it will be adversely affected by the decision. 2

(c) If invited by the Commission in the exercise of its power under section 590 of the FW Act to inform itself. 3

(d) On appeal, if the employee organisation can show a grievance, which will be suffered as a result of the decision complained of, beyond that of an ordinary member of the public. 4

[14] The AMOU and the AIMPE have conceded that the first avenue is not available to them in relation to this Application.

[15] The fourth avenue is only available on appeal and not at first instance. The fact that an employee organisation may have a right of appeal against a decision to approve an enterprise agreement does not of itself create a right to be heard in relation to the Application at first instance. 5

Right to be Heard as a Matter of Procedural Fairness

[16] As a matter of procedural fairness, standing may be granted to an employee organisation who is not a bargaining representative if the organisation can identify a right, interest or legitimate expectation that might be affected, or potentially affected, by the decision to approve an agreement. 6

[17] Whether an employee organisation which is not a bargaining representative has a right to be heard in relation to an application for approval of an agreement will depend on the circumstances in each case. 7

[18] The following rights have been held not to be sufficient to attract the right to be heard: 8

● Right to represent industrial interests.

● Right for employees to be members.

● Right to be involved in bargaining for a successor agreement or right to advocate for improvements for the terms and conditions of employees in the industry more broadly.

● Right for an officer of the employee organisation who is a permit holder to investigate suspected contraventions of the FW Act or terms of a proposed agreement.

● Rights which the employee organisation has under OHS legislation to represent employees and protect employees’ interests.

[19] In Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 (Collinsville Case), the Full Bench made it clear that 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.⁹

[20] Even a history of representation and membership at the worksite has been held to be, of itself, not enough to create a legitimate expectation that would attract a right to be heard. 10

[21] Similarly, the fact that an employee organisation has amongst its interests, objections or expectations that it will obtain and maintain reasonable employment conditions for its members is an insufficient basis to create a right, interest or legitimate expectation which would found a right to be heard in relation to an application. 11

[22] However, in Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd and Ors[2016] FWCFB 2654 (MGI Piling Case) the Full Bench recognised that an employee organisation may have a right to be heard if the proposed enterprise agreement displaces or alters the rights and obligations of an employee organisation vis-à-vis the employees conferred by the agreement which the proposed agreement replaces. 12

[23] In this case, the AMOU submit that it has a right to be heard because it has a right, interest or legitimate expectation under the Jan De Nul (Australia) Pty Ltd AMOU Dredging Agreement 2012 (Dredging Agreement) which the Proposed Agreement seeks to replace that will be lost if the Proposed Agreement is approved. In particular, the AMOU say that clauses 11, 18.4.3, 18.6, 22.1.2, 32.1.1 and 35 of the Dredging Agreement contain beneficial provisions which are not replicated in the Proposed Agreement. These clauses of the Dredging Agreement provide as follows:

“11. SETTLEMENT OF DISPUTES PROCEDURE

….

11.1.4 Should the matter still not be resolved, the following procedure will be followed:

11.1.4.1 A joint discussion shall be held between the Employee/s, the Company officer responsible for industrial relations, and/or that person's representative

11.1.4.2 If the matters are not finalised, the matter shall be referred to Fair Work Australia unless an alternate dispute resolution is agreed between the parties to the dispute. The resolution of the issue, including by arbitration if necessary proposed by either the agreed independent facilitator of the FWA will be accepted and implemented by all parties.

11.1.5 Whilst the foregoing procedure is being followed, work shall continue normally. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this subclause.

11.1.6 Having regard for the productivity of the dredger and in the interests of efficient on board communications the Company can permit the Employee representative, if one is appointed by the Employee/s, to call an authorised meeting for the purpose of reporting to Employees on the progress of a matter under the above procedure.”

“18. MANNING AND MOBILISATION

…

18.4.3 Further in such circumstances where the dredging operational duties of the Deck Officers onboard a particular dredge requires specific additional qualification and extensive experience, the Company and the Union will consult and develop specific manning and or training arrangements to apply prior to the mobilisation of the dredge.

…

18.6 Where any vessel covered by this Agreement is imported to work in the dredging industry the Company recognises in accordance with past practice, it will invite an authorised Employee representative to undertake a vessel inspection prior to its mobilisation. Where a vessel has previously operated in Australia and has been previously inspected within the preceding four years, no further inspection will be necessary.”

“22. ACCOMMODATION FACILITIES AND VICTUALLING

Subject to the provisions of this Clause, the Company shall accommodate and keep the employee free of charge on board or where this is not possible, at an approved Company provided shore based facility which is equivalent to the best Australian shipboard standards and shall unless otherwise agreed by the parties provide;

22.1 Accommodation Facilities

22.1.1 Food, dining, mess room" utensils, bedding and bathing supplies to a reasonable standard

22.1.2 Where a disagreement occurs on the application of clause 21.1.1 that cannot be resolved, it shall be immediately referred to the Company and if an Employee or Employees so request to the union for resolution.

22.1.3 It is the Master's responsibility to ensure that the vessels living quarters, dining rooms, recreation rooms, galley, food storage and handling rooms are maintained in a clean and hygienic state.”

“32. TRAINING

32.1 The Parties recognise that at the commencement of this Agreement, Jan De Nul has limited dredging contracts being undertaken within Australia and as a consequence whilst the Company is committed to the principle of training Australian dredging projects, to commit to extended training arrangements other than as provided within the following subclauses.

32.1.1 In the event that the Company is awarded a substantial extension of their existing dredging contracts and or are awarded significant new contracts within Australia, the Parties will meet to develop training arrangements for Cadets and or Masters/Watchkeeping certificates…”

“35. OCCUPATIONAL HEALTH AND SAFETY

35.1 There are responsibilities on the Company to provide safe working conditions, promote and encourage safe working practices and provide information and control measures for hazards in the workplace and related environment. Employees have a responsibility to perform their jobs in a safe and environmentally responsible manner and undertaken to follow OH&S and environmental policies and procedures set by the Company.

35.2 Fitness for Work

The parties agree that Employees are required to and will adhere to the Company's Drug and Alcohol Policy and/or the Clients Drug and Alcohol Policy, whichever is the more stringent, at all times while engaged by the Company. The Company will take steps to ensure that before the commencement of engagement of Employees for a project that the Union and the Employees are briefed on the Company's D&A Policy and the D&A Policy of the Company's clients.”

[24] The AMOU is a party to the Dredging Agreement and ‘Union’ is defined in clause 3 of the Dredging Agreement as the AMOU. Clauses 11 and 18.6 of the Dredging Agreement grant rights to employees’ representatives rather than specifically to the AMOU. Clause 22.1.2 provides that a dispute about accommodation facilities and victualling may be referred to the ‘Union’ for resolution if the employee so requests. This is a right of the employee not the ‘Union’. Therefore neither clauses 11 or 18.6 of the Dredging Agreement create a right, interest or legitimate expectation for the AMOU.

[25] Clause 18.4.3 requires Jan De Nul to consult with the ‘Union’ where the dredging operational duties of a Deck Office on-board a particular dredge require specific additional qualifications and extensive experience. Clause 35 provides that Jan De Nul will brief the ‘Union’ and employees on the Company’s and Clients’ Drug and Alcohol Policies at the commencement of engagement of employees for a project. Clause 32.1.1 provides that in the event that Jan De Nul is awarded a substantial extension of their existing contracts or awarded significant new contracts within Australia the ‘Parties’ will meet to develop training arrangements for particular classifications of employees.

[26] Clauses 18.4.3, 32.1.1 and 35 of the Dredging Agreement create rights, interests and/or legitimate expectations for the AMOU directly. This can be contrasted to the situation in the MGI Piling Case where the Full Bench on appeal found that the relevant clauses relied on by the CFMEU to establish standing did not confer rights specifically or directly on the CFMEU.

[27] The AMOU’s relationship to the Proposed Agreement is not limited to a historic involvement in the industry or a right to potentially cover the employees covered by the Proposed Agreement. A number of clauses in the Dredging Agreement specifically refer to the AMOU and create enforceable rights for the AMOU that would not otherwise exist. The Proposed Agreement, which does not contain equivalent provisions, therefore alters the rights and obligations of the AMOU vis-à-vis the employees (and Jan de Nul) from the position which currently exists.

[28] 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 particular circumstances of the case. 13

[29] In this regard, the circumstances of this case can be distinguished from those which existed in cases such as the Collinsville Case and the MGI Piling Case where standing to be heard as a matter of procedural fairness was refused. In those cases the agreements being displaced by the proposed agreement in relation to which approval was being sought did not contain any specific reference or role for the union which sought, but was denied, standing to be heard as a matter of procedural fairness.

Invited to be Heard Pursuant to Section 590 of the FW Act

[30] The final remaining avenue by which the AIMPE might have an opportunity to be heard in relation to the approval of the Proposed Agreement is via section 590 of the FW Act. The Commission may, in the exercise of its powers under section 590 of the FW Act, choose to hear from an employee organisation about the approval of an agreement even though the employee organisation may not otherwise have a right to be heard. 14

[31] Section 590 confers on the Commission a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person or organisation. 15

[32] The AIMPE were invited to provide submissions and evidence in support of its proposition that it should be invited to be heard both by written submissions and at oral hearing. Counsel for the AIMPE was provided with access to the materials filed by Jan De Nul in support of the Application to inform those submissions. In both the written submissions and at oral hearing the AIMPE failed to provide persuasive submissions or sufficient credible evidence to warrant the exercise of the discretion which exists under section 590 of the FW Act. 16

[33] Having found that the AMOU has standing to be heard in relation to this Application and that the AIMPE neither has standing to be heard nor has established a basis upon which it should be invited to be heard, directions will be issued following this decision to provide for the final determination of the Application.

DEPUTY PRESIDENT

Appearances:

C Fogliani of W.G McNally Jones Staff for the AMOU and the AIMPE.

N Ellery of Corrs Chambers Westgarth for Jan De Nul (Australia) Pty Ltd.

Hearing details:

2016.

Perth:

November 4.

Final written submissions:

Applicant, 20 October 2016

Respondent, 25 October 2016

 1   Fair Work Act 2009 (Cth), section 176(1) and Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [16].

 2   CFMEU v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at [72].

 3   Ibid at [48] and [75].

 4  Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64; CEPU and AMWU v Main People Pty Ltd[2014] FWCFB 8429; Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at footnote 13; and Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’ Union[2016] FWCFB 3370 at [15].

 5   Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’[2016] FWCFB 3370 at [15].

 6   CFMEU v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at [53] and [72].

 7 Ibid at [72].

 8   Ibid at [55]-[70].

9 Ibid at [69].

 10   Ibid at [61]-[65].

 11 Ibid at [70].

 12   Ibid at [71] and Construction, Forestry, Mining and Energy Union v MGI Piling Pty Ltd and Ors[2016] FWCFB 2654 at [19].

 13   CFMEU v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at [72].

 14 Ibid at [75].

 15 Section 590 of the FW Act.

 16   This can be contrasted to the situation in DOF Management Australia Pty Ltd [2016] FWC 3792 in which the Maritime Union of Australia provided detailed evidence and submissions which established that some inquiry should be made as to whether the group of employees were fairly chosen, whether the proposed agreement was properly made and whether the proposed agreement passed the better off overall test.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR587253>