INTERIM DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Macmahon Contractors Pty Ltd
(AG2017/4173)

COMMISSIONER WILLIAMS

PERTH, 13 FEBRUARY 2018

Application for approval of the Macmahon Byerwen Agreement 2017 - request by union to be heard.

[1] This Interim Decision concerns an application made by Macmahon Contractors Pty Ltd (Macmahon or the Applicant) on 13 September 2017 under section 185 of the Fair Work Act 2009 (the Act) for the approval of the Macmahon Byerwen Agreement 2017 (the Agreement). The Agreement is a single-enterprise agreement.

[2] On 2 October 2017 the Commission provided the Construction, Forestry, Mining and Energy Union (the CFMEU), at their request, with copies of the relevant forms F16-Application for approval of enterprise agreement and F17-Employer’s statutory declaration in support of an application for approval of an enterprise agreement lodged by the Applicant. At the time of requesting these materials the CFMEU advised it had concerns about the content of the Agreement and wished to have those concerns heard.

[3] On 4 October 2017 the CFMEU advised the Commission that they do not have any members employed by the Applicant and they were not a bargaining representative in the making of the Agreement however they sought to be heard by the Commission pursuant to section 590 of the Act. The same day the Applicant’s representative advised the Commission that they objected to the CFMEU being heard any further on this application.

[4] On 13 October 2017 the CFMEU filed written submissions both on the basis for being heard pursuant to section 590 (1) of the Act and on the issues of concern it has regarding the content of the Agreement, the Better off Overall Test (BOOT) and inconsistency with the National Employment Standards (NES). In response the same day the Applicant’s representatives again advised the Commission of its continued objection to the CFMEU being heard any further on this matter.

[5] On 18 January 2018 this application was allocated to myself. On 22 January 2018 directions were issued for the Applicant to file submissions in response to the CFMEU’s submission regarding its request to be heard and then for the CFMEU to file any submission in reply. Both parties have filed submissions as directed.

[6] This Interim Decision concerns only the request by the CFMEU to be heard on this application.

The parties’ submissions

The CFMEU

[7] The CFMEU is not seeking to be heard by way of right or because it has a “right, interest or legitimate expectation” that requires that it be heard as a matter of procedural fairness. The CFMEU acknowledges that it does not have any members employed by the Applicant who were involved in the making of the Agreement and, as such, does not have standing to appear as of right. However the CFMEU seek the opportunity to be heard by the Commission in this matter by virtue of section 590 of the Act.

[8] Section 590 (1) of the Act provides that the Commission “may, except…

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: [2018] FWC 869
Decision Date: 13 FEBRUARY 2018

CaseChat Overview and Summary

In the matter of Macmahon Contractors Pty Ltd, the Fair Work Commission (FWC) was tasked with deciding whether to grant the Construction, Forestry, Mining and Energy Union (CFMEU) the opportunity to be heard on the application for approval of the Macmahon Byerwen Agreement 2017, an enterprise agreement between Macmahon Contractors and its employees. The CFMEU, while not a party to the agreement and having no members involved in its creation, sought to be heard under section 590 of the Fair Work Act 2009, which allows the FWC to inform itself in any manner it considers appropriate. The legal issue at the heart of this decision was whether the FWC should exercise its discretion to allow the CFMEU to present its concerns about the agreement.

The FWC examined the broad discretion provided under section 590, acknowledging that the CFMEU did not have a right to be heard by virtue of being a party to the agreement or having members involved in its negotiation. The FWC considered the CFMEU's arguments based on its historical representation of employees in the black coal mining industry and its detailed knowledge of industry awards and agreements. However, the FWC concluded that the CFMEU had not demonstrated any unusual circumstances that would warrant the exercise of this discretion. The FWC noted that the CFMEU's concerns, primarily relating to the Better Off Overall Test and compliance with the National Employment Standards, could be adequately addressed by the FWC without the need for a contradictor. Furthermore, allowing the CFMEU to be heard would unnecessarily prolong the approval process, contrary to the objectives of the Fair Work Act to facilitate the making of enterprise agreements without delay.

The FWC decided that there were no compelling reasons to exercise its discretion under section 590 in favour of allowing the CFMEU to be heard. The decision emphasised that the absence of a contradictor was not an unusual circumstance that would justify granting leave for the CFMEU to present its concerns. Consequently, the CFMEU would not be heard further in regard to this application to approve the Agreement.

Orders