Maritime Union of Australia, the v Smit Lamnalco (Australia) Pty Ltd

[2016] FWCFB 1145

[2016] FWCFB 1145

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Maritime Union of Australia
v
SMIT Lamnalco (Australia) Pty Ltd
(C2016/2045)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT ASBURY
COMMISSIONER MCKENNA	SYDNEY, 26 FEBRUARY 2016

Appeal against decision [2015] FWCA 8698 of Deputy President Hamilton at Melbourne on

17 December 2015 in matter number AG2015/7405.

[1]        On 7 January 2016 the Maritime Union of Australia (MUA) lodged a notice of appeal

in which it sought permission to appeal and appealed a decision of Deputy President Hamilton

1

issued on 17 December 2015 (Decision) approving the SLOA Enterprise Agreement 2015.

[2]        On 19 February 2016 the MUA filed in the Commission a document setting out further

grounds of appeal in addition to those stated in its notice of appeal as follows:

“1.	Section 185(2) of the FW Act is expressed in mandatory terms. It requires that
“the application must be accompanied by:
(a) a signed copy of the agreement and
(b) any declarations that are required by the procedural rules to accompany

the application.”

2. Section 185(5) provides that the regulations may prescribe requirements

relating to the signing of agreements.

3. Section 186(1) of the FW Act empowers approval of an enterprise agreement

only if an application for the approval of an enterprise agreement is made

under section 185. An application “under section 185” must be one made in

accordance with it.

4. Section 585 of the FW Act requires that “An application to the FWC must be

in accordance with the procedural rules (if any) relating to applications of that

kind”.

[2016] FWCFB 1145

5.  Rule 8(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides:

If the President approves a form for a particular purpose, then subject to these

Rules, the approved form must be used for the purpose.

6. Form F16 is the approved form for an application under s 185 of the FW Act.

7.          Regulation 2.06A of the Fair Work Regulations 2009 (FW Regs) provides:

(1) For subsection 185(5) of the Act, this regulation prescribes the

requirements for the signing of an enterprise agreement.

(2)	For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a
signed copy only if:

(a) it is signed by:

(i)    the employer covered by the agreement; and

(ii)   at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i)    the full name and address of each person who signs the agreement; and

(ii)   an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of

an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative of the employees covered by the agreement is an

employee in a class of employees who will be bound by the agreement, the

representative’s signature is not taken to indicate that the representative

intends to be bound by the agreement.

8.          The case file shows that application that was filed by the respondent and was

considered by the Deputy President:

(a) was missing page 4 which asked the respondent if there were any union or

employee bargaining representatives involved in the agreement making

process; and;

(b) althoughit might be implied from the fact that sections 5.2 and 5.3 were

filled in but redacted that the answer to 5.1 was yes, sections 5.2 and 5.3

were redacted.

9.          There is no suggestion on the case file that these omissions and/or redactions

were remedied before the Deputy President approved the agreement by the

supply of the detail required by Form 16. As a result of omitting and/or

redacting these details, the application that was filed and considered by the
[2016] FWCFB 1145

Deputy President was not in the approved form of Form 16 and failed to

comply with rule 8(2) of the FWC Rules. Therefore the application was not

made as required under ss 185 and 585 of the FW Act and the Deputy

President should not have approved the agreement.

10.        The case file shows that the agreement document was filed by the respondent:

(a) without the names, signatures, and addresses of any employee bargaining

representatives on the signature page; and

(b) without any explanation of any of the authority of any person on the

signature page to sign the Agreement.

11.        These details were required to be included in the filed agreement by Regulation

2.06A(2) of the FW Regs. Further, without inclusion of the details of the

employee representative(s) required by Regulation 2.06A(2), the Deputy

President could not have been satisfied that the requirement of Regulation

2.06A(3) of the FW Regs had been met.

12.        It appears that at some time subsequent to the agreement document being filed,

the Deputy President was in receipt of a signature page with the name,

signature and address of an employee bargaining representative all redacted.

However, there is no suggestion on the case file that the omissions in the filed

agreement document were otherwise changed before the Deputy President

approved the Agreement.

13.        In any event the redactions and the lack of any explanation of authority meant

that the Deputy President could not have been satisfied that the requirements of

s182(5)(a) of the FW Act and Regulation 2.06A of the FW Regs had been met

and should not have approved the Agreement.

14.        As a result of the above omissions and/or redactions in the application and the

filed agreement, the approval by the Deputy President of the agreement was

not in accordance with s.186(1) because he did not have before him an

application made in accordance with s.185.”

[3]        On 23 February 2016 SMIT Lamnalco (Australia) Pty Ltd (SMIT Lamnalco) and the

MUA filed a joint document titled “Minutes of Consent Order” which requested that the Full

Bench grant permission to appeal on the basis of the further grounds of appeal filed by the

MUA on 19 February 2016 only, uphold the appeal and quash the Decision.

[4]        Based on the material before us, we are satisfied that the MUA’s additional grounds of

appeal properly identify appealable error. Accordingly, we will make the orders jointly

proposed by the parties. It will also be necessary to dismiss SMIT Lamnalco’s application for

approval of the SLOA Enterprise Agreement 2015. A separate order (PR577332) will be

issued in conjunction with this decision.
[2016] FWCFB 1145

VICE PRESIDENT

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[2015] FWCA 8698