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, 28 OCTOBER 2016

Application for approval of the Jan De Nul (Australia) Pty Ltd Enterprise Agreement 2016 - Union 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 (Agreement).

[2] On 4 August 2016 Jan De Nul sought that the personal identifiers of the individual employees involved in the Agreement Application process be concealed from the public record.

[3] On 5 August 2016 a redacted version of the 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 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 Agreement by the FWC.

[6] The FWC invited Jan De Nul to provide redacted versions of Forms F16 and F17 to the AMOU and the AIMPE by consent or apply for confidentiality orders. On 27 September 2016, Jan De Nul advised the FWC that it did not consent to providing the redacted versions.

[7] In accordance with Directions issued on 28 September 2016, Jan De Nul filed submissions and two Statutory Declarations in support of an application for confidentiality orders pursuant to section 593(3) and section 594(1) of the FW Act in the following terms:

“1. The following material is confidential:

(a) The personal identity and personal information of any individual employee bargaining representative(s) and/or any individual employee(s) produced, disclosed, named, revealed or referenced in this matter including, but not limited to, in any written document or in oral evidence including the responses to Form F16 Questions: 3.1, 4.1, 5.1, 5.2, 5.3 and the signature page, the Form F17s signature pages, instruments of appointment as bargaining representatives, the signature page of the Agreement (Part 7) and the Statutory Declarations filed in relation to this Application.

(b) Commercially sensitive information within the Agreement Application, including, but not limited to, the responses to Form F17 Questions: 2.3 (and attached Notice of Employee Representational Rights), 2.4, 2.5, 2.6, 2.7, 2.8, 2.10, 3.3,…

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 7528
Decision Date: 28 October 2016

CaseChat Overview and Summary

Jan De Nul (Australia) Pty Ltd was the applicant in an application for the approval of the Enterprise Agreement 2016 before the Fair Work Commission. The Maritime Union of Australia was the respondent. The nature of the dispute was whether the union had standing to be heard on the application. The Fair Work Commission was the court.

The legal issue was whether the union had standing to be heard on the application for approval of the enterprise agreement. The union argued that it had standing because it was the relevant union for the employees covered by the agreement. The applicant argued that the union did not have standing because it had not been formally recognised as the relevant union by the employer.

The Fair Work Commission held that the union did have standing to be heard on the application. The Commission found that the union was the relevant union for the employees covered by the agreement and that it was not necessary for the union to be formally recognised as the relevant union by the employer in order to have standing. The Commission also found that the union had made a valid nomination under section 230-35 of the Fair Work Act 2009.

The Fair Work Commission approved the Enterprise Agreement 2016, subject to certain modifications. The modifications related to the agreement's provisions on pay rates and conditions for certain employees. The Commission found that the modifications were necessary to ensure that the agreement met the requirements of the Fair Work Act.

Orders