Mackenzie Marine & Towage Pty Ltd

[2017] FWC 37

[2017] FWC 37

FAIR WORK COMMISSION

INTERIM DECISION

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

Mackenzie Marine & Towage Pty Ltd
(AG2016/4502)

DEPUTY PRESIDENT BINET PERTH, 3 JANUARY 2017

Application for approval of the MMT Enterprise Agreement 2016 – Union standing.

[1] On 15 July 2016, Mackenzie Marine & Towage Pty Ltd (MMT) 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 MMT Enterprise Agreement 2016 (Agreement).

[2] On 20 July 2016, the FWC received an application from the Maritime Union of Australia (MUA) requesting that the MUA be granted standing in relation to the Application and giving notice under section 183(1) of the FW Act that it wished to be covered by the Agreement.

[3] On 6 October 2016, in compliance with directions issued on 30 September 2015, MMT filed with the FWC, on a confidential basis, a list of the names of its current and former employees employed between 7 June 2016 (being the notification time for the Agreement for the purposes of section 173(2) of the FW Act) and 5 July 2016 (being when the Agreement was made for the purposes of section 182 of the FW Act) (MMT Employees).

[4] On 28 October 2016, the FWC received an application from the Australian Institute of Marine and Power Engineers (AIMPE) requesting that the AIMPE be granted standing to be heard in relation to the Application and access to copies of the Forms F16 Application and F17 statutory declaration.

[5] MMT oppose both the MUA and the AIMPE being granted leave to be heard in relation to the Application or being covered by the Agreement. MMT also oppose the MUA and the AIMPE being provided with copies of the Forms F16 Application and F17 statutory declaration.

[6] On 30 November 2016, the Application was listed for a telephone conference in relation to the issue of standing and the Unions’ access to documents (Conference). At the Conference, MMT agreed to provide a copy of its undertaking to both the MUA and the AIMPE.

[7] On the basis of the oral submissions of the parties at the Conference and the written submissions of MMT dated 2 December 2016, the MUA and the AIMPE were granted access to the Forms F16 and F17 for inspection. 

[8] In accordance with directions issued on 5 December 2016 (Directions), on 8 December 2016 the AIMPE filed with the FWC, on a confidential basis, a list of the names of its current and former members potentially covered by the Agreement.

[9] In accordance with the Directions, on 9 December 2016 the AIMPE and the MUA filed with the FWC submissions in relation to their standing to be heard, respectively, in relation to the Application and the witness statements and evidence on which they each sought to rely.

[10] In accordance with the Directions, on 16 December 2016 MMT filed with the FWC and served on the MUA and the AIMPE its submissions in reply to the AIMPE’s and the MUA’s submissions regarding their respective standing to be heard in relation to the Application.

[11] The Directions noted that a determination in respect of the MUA’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 Chambers in writing by close of business, Monday 19 December 2016 that they wished to make oral submissions.

[12] On 19 December 2016, the MUA wrote to the FWC seeking leave to file brief submissions in reply to MMT’s submissions in relation to standing. The MUA confirmed that, should leave be granted for these written submissions in reply to be filed, it would not seek for the issue of standing to be heard orally. MMT subsequently confirmed it consented to the MUA’s request and was happy for standing to be determined on the papers. In light of the correspondence received from the MUA and MMT, the FWC granted leave for the MUA to file submissions in reply by close of business, 20 December 2016. On 20 December 2016, the MUA filed its further submissions in reply to MMT’s submissions.

Consideration

[13] The MUA and the AIMPE have sought permission to be heard as full participants in the Application. MMT have objected to either the MUA or the AIMPE being heard in any capacity.

[14] 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

[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 approval application at first instance. 5

[16] Section 176(1)(b)(i) of the FW Act provides that an employee organisation is a bargaining representative of an employee that will be covered by the agreement if the employee is a member of the organisation, unless the employee has appointed another person as his or her bargaining representative under section 176(1)(c) or has revoked the status of the employee organisation as his or her bargaining representative for the agreement under subsection 178A(2).

[17] Based on the evidence before me it appears that there were employees who were members of each of the MUA and the AIMPE at the time MMT initiated bargaining for the Agreement who will be covered by the Agreement. Pursuant to section 176(1)(b) of the FW Act, the MUA and the AIMPE were therefore a bargaining representative of those employees. There is no evidence before me that any of the employees appointed alternative bargaining representatives or revoked the status of the MUA or the AIMPE as their bargaining representative. 6

[18] I therefore find that the MUA and the AIMPE have standing to be heard in relation to the Application in the capacity of bargaining representatives, and that the MUA and the AIMPE may give notice pursuant to section 183 of the FW Act that they wish to be covered by the Agreement.

DEPUTY PRESIDENT

 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   Construction, Forestry, Mining and Energy Union (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 [25].

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