MPR Scaffolding Pty Ltd t/a MPR Scaffolding v Construction, Forestry, Mining and Energy Union

[2015] FWCFB 7237

[2015] FWCFB 7237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

MPR Scaffolding Pty Ltd t/a MPR Scaffolding
v
Construction, Forestry, Mining and Energy Union
(C2015/5665)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER MCKENNA

SYDNEY, 16 DECEMBER 2015

Appeal against decision [[2010] FWAA 6435] of Senior Deputy President Cartwright at Canberra on 20 August 2010 in matter number AG2010/13242.

Introduction

[1] On 13 August 2015 MPR Scaffolding Pty Ltd trading as MPR Scaffolding (MPR) lodged a notice of appeal against a decision of Senior Deputy President Cartwright issued on 20 August 2010 (Decision) 1 in which the MPR Scaffolding Pty Ltd/CFMEU Collective Agreement (ACT) 2010-2012 (Agreement) was approved. The legal consequence of the Decision was that the Agreement took effect as an enterprise agreement under the Fair Work Act 2009 (FW Act) regulating the terms and conditions of employment of MPR’s employees on 20 August 2010, and remained in effect until 4 August 2015, when it was replaced by another enterprise agreement. The notice of appeal contends among other things that a number of jurisdictional prerequisites for the approval of the Agreement had not been satisfied. Subject to one matter which we deal with later, it is not contended that the Senior Deputy President actually erred in approving the Agreement on the basis of the evidence before him; rather it is alleged that he was misled as to the facts. On the true facts, MPR contends, the Agreement was incapable of approval under the FW Act because it had not been “genuinely agreed” as required by s.186(2)(b)(i).

[2] Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the appellant. The appeal was lodged approximately four years and eleven months after the Decision. MPR therefore requires an extension of time under rule 56(2) in order for its appeal to be competent. It has applied for such an extension.

[3] The appeal has been brought pursuant to s.604(1) of the FW Act. There is no right of appeal under that provision; all appeals require the Commission’s permission. Under s.604(2), the Commission is required to grant permission if it is satisfied that it is in the public interest to do so. Therefore if MPR obtains an extension of time under rule 56(2), it would then be necessary for it to obtain permission to appeal before its appeal could be determined.

[4] The matter was listed for hearing before us on 20 and 21 October 2015 on the basis that submissions would be received simultaneously on the issues of the necessary extension of time, permission to appeal and the merits of the appeal. At the hearing, MPR applied for leave to adduce new evidence in the appeal. That evidence was generally intended to prove the facts necessary to demonstrate that the Agreement was incapable of approval under the FW Act and to establish that those facts were not known to MPR within the 21-day time period to appeal or indeed until recently this year. The Construction, Forestry, Mining and Energy Union (CFMEU), which was covered by the Agreement while it was in operation and effectively appeared in the matter as the respondent to the appeal, opposed the admission of this evidence. At the hearing we determined to admit the evidence on a provisional basis for the purpose of deciding the extension of time application, and reserved the position as to the use of the evidence beyond that point if we were to grant the extension. 2 The CFMEU was permitted to adduce some evidence in reply on the same basis.

The statutory framework

[5] Part 2-4 of the FW Act establishes the procedures for the approval by the Commission of enterprise agreements. An enterprise agreement does not take effect under the FW Act unless and until approved by the Commission. The “basic rule” in s.186(1) for approval of enterprise agreements is as follows:

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

[6] Section 186(2)(a) sets out one of the requirements referred to in s.186(1). It provides, in relation to an enterprise agreement which is not a greenfields agreement, that the Commission must be satisfied that the agreement “has been genuinely agreed to by the employees covered by the agreement”.

[7] Section 188 sets out when employees have “genuinely agreed to” an enterprise agreement as follows:

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[8] Section 181(2), referred to in s.188(a)(ii) above, requires that an employer must not request employees who would be covered by it to approve the agreement by voting for it “until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given”. Section 173(1) provides:

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

[9] Section 173(2) relevantly provides that the “notification time” for an enterprise agreement includes when the employer agrees to bargain, or initiates bargaining, for the agreement. Section 173(3) provides that the “employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement”. Section 174 requires that the notice provided contain the content and be in the form prescribed by the regulations. The prescribed form, broadly speaking, advises employees of their right to be represented in bargaining for enterprise agreements by industrial organisations and other persons acting as bargaining agents.

[10] Section 180 relevantly provides:

180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

…

[11] In relation to a single enterprise agreement that is not a greenfields agreement, section 182(1) provides:

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Background to the lodgment of the appeal

[12] The circumstances in which MPR has lodged its appeal, being relevant to the application for an extension of time and our assessment of the evidence, require a short explanation. In the first half of 2015 a dispute arose between MPR and the CFMEU concerning entering into a new enterprise agreement, the payment of wages to MPR’s employees and other matters. There appears to have been contact made between MPR and the Royal Commission into Trade Union Governance and Corruption (Royal Commission), since on 27 May 2015 Mr Petar Josifoski, director and sole owner of MPR, made a witness statement for the Royal Commission.

[13] On 3 July 2015 the CFMEU instituted proceedings against MPR in the Federal Circuit Court of Australia concerning alleged breaches by MPR of the Agreement. In its court application the CFMEU sought orders requiring MPR to pay monetary penalties as well as to pay identified employees alleged shortfalls in wages. MPR retained lawyers to defend this application. Those lawyers immediately sought access to the Commission’s file concerning the approval of the Agreement. The documents on the file were shown to Mr Josifoski on 15 July 2015. One of the documents, entitled “Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement” (Employer’s Declaration), was (on its face) a statutory declaration made by Mr Josifoski on 5 August 2010 to the effect that the pre-approval steps necessary for the Agreement to have been genuinely agreed had been taken and which specified the dates upon which such steps had been taken. Mr Josifoski instructed his lawyers that this was the first time he recalled seeing the Employer’s Declaration.

[14] Mr Josifoski then raised the issue of the approval of the Agreement with the Royal Commission, and made a further witness statement about it on 27 July 2015. On 29 July 2015 Mr Josifoski gave evidence about this and other matters involving MPR and the CFMEU, and further evidence about these matters was given by other witnesses before the Royal Commission on 29 July, 30 July, 1 September and 2 September 2015.

[15] The notice of appeal in this matter was lodged, as earlier stated, on 13 August 2015.

The application for approval of the Agreement

[16] The application for approval of the Agreement (approval application) when lodged was accompanied by three other documents: the Employer’s Declaration; an undated statutory declaration made by Mr Jason O’Mara entitled “Form F18 - Declaration of Employee Organisation in Support of Application for Approval of Enterprise Agreement” (Union Declaration); and a “Form F22 - Notice for Employee Organisation to be Covered by Enterprise Agreement” signed by Mr O’Mara and dated 10 August 2010 (Coverage Notice). The approval application and the accompanying documents were date-stamped as having been lodged with Fair Work Australia (as the Commission was then named and which we will refer to as “FWA”) on 1 August 2010. MPR’s notice of appeal originally raised this as indicative of the falsity of the facts stated in the Employer’s Declaration and the Union Declaration, since they referred to events which were said to have occurred after 1 August 2010, and the application itself was dated 10 August 2010. In response to this appeal ground, the Commission of its own initiative made internal inquiries as to the circumstances in which the application was filed. This resulted in a memorandum dated 19 August 2015 being prepared by Ms Cate Tinney, the Commission’s National Registry Manager. This memorandum stated:

“The purpose of this memo is to provide a report about the filing of the enterprise agreement - MPR Scaffolding Pty Ltd/CFMEU Collective Agreement 2010-2012 (AG2010/13242). The application for approval of the enterprise agreement was a paper lodgment and was processed in CMS+ by the Canberra Registry. There was no envelope in the electronic file so it is likely that it was lodged in person at the counter.

It appears that due to a clerical error the wrong date stamp was put on the paper application and the supporting documentation by a Canberra Registry staff member. Below I outline the reasons for forming this view:

• There is an inconsistency between the date stamp on the lodgment documents and the date that the lodgment documents were first entered into our Case Management System (CMS+).



• The matter history in CMS+ shows that the electronic file was first created on 10 August 2010. The date shown on the lodgment documents is 1 August 2010.



• In CMS+ there is no file note explaining any reason for delay in creating the CMS+ file.



• At that time, as is the case currently, I am advised that it was expected that all applications were filed in CMS+ within 48 hours of receipt.



• I note that 1 August 2010 was a Sunday. The Registry would not have been able to receive a paper application on a Saturday or Sunday, unless it was an urgent matter. If it had been received in the post box between COB on Friday and 9am on Monday morning, the application and supporting documentation would have been stamped 2 August 2010



• There was one other paper lodgment in Canberra that was also created in CMS+ on 10 August 2010. The lodgment documents for that matter were also date stamped 1 August 2010.



• Other reasons have been considered to explain the 9 day gap between the physical date stamp and the electronic date stamp but appear extremely unlikely. It may have been that there was a backlog of applications or an extraordinary system outage. There is no evidence to support either of these scenarios.”

[17] A copy of this memorandum was supplied to MPR and the CFMEU prior to the hearing. Neither party took any issue with the facts stated in the memorandum or the conclusions drawn by Ms Tinney. Without opposition from either party, the memorandum was admitted into evidence during the hearing and marked as an exhibit. MPR did not press its submission that the lodgement date stamp was evidence of the falsity of the statutory declarations (although it did make a different submission in connection with this matter, which we deal with later).

[18] We are therefore satisfied that the approval application and the accompanying documents were lodged with the Canberra registry of FWA on 10 August 2010.

[19] It is apparent that the approval application and the accompanying documents were prepared in accordance with FWA’s standard forms at that time. The approval application was made by the CFMEU and signed by Mr O’Mara, who was and is the Assistant Secretary of the CFMEU’s ACT branch. The application stated that it was made on the basis that the CFMEU was a bargaining representative, and that to the applicant’s knowledge there were no other employee bargaining representatives for the Agreement.

[20] The Employer’s Declaration was stated (on the last page) to have been declared at Canberra on 5 August 2010 (with the date in handwriting), and contained a signature above the words “Signature of Deponent”. Immediately above the signature was the following statement:

“I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.”

[21] The Employer’s Declaration was witnessed by Ms Natasha Roache, whose name and signature appeared on the last page immediately next to the stamp of the Dickson ACT Branch of the Commonwealth Bank. The name, address, telephone numbers, fax number and email address of MPR were handwritten at the foot of the last page as contact details in relation to the declaration. The information otherwise appearing in the declaration was typed. The format of the declaration involved the provision of answers to various standard questions or requests for information. Reading together the questions or requests and the answers given, the Employer’s Declaration relevantly stated, in effect, the following facts:

• A notice of representational rights complying with s.174 was given to each employee who would be covered by the Agreement in accordance with s.173 (paragraph 2.1).



• The last such notice was provided on 12 July 2010 (paragraph 2.2(a)).



• Voting for the Agreement commenced on 4 August 2010 (paragraph 2.2(b)).



• The date the Agreement was made - that is, the date on which the voting process by employees concluded - was 4 August 2010 (paragraph 2.2(c)).



• The employees were given or had access to the written text of the Agreement at least seven days before the start of the voting process by way of the following steps: “The Employer arranged and permitted meetings between the Employees and the Employee Representative [i.e. the CFMEU]. It is the understanding of the Employer that the Employee Representative went through the agreement with the Employees so that all Employees are fully aware of the terms and conditions of employment under the agreement” (paragraph 2.4). This was also the means by which employees had explained to them the terms of the Agreement and their effect (paragraph 2.6).



• Employees were notified of the time and place at which the vote was to occur and the voting method to be used at least seven days before the start of the voting process by MPR advising employees of this verbally. MPR also understood that the CFMEU advised employees of the voting time and place during scheduled meetings between them, and also understood from information from the CFMEU that employees voted for the Agreement by a show of hands (paragraph 2.5).



• Three employees would be covered by the Agreement, and all three of them cast a valid vote and voted to approve the Agreement (paragraph 2.7).



• The Agreement covered all employees of MPR (paragraph 2.8).



• One of the employees was part-time, and two were casual (paragraph 4.1).

[22] The declaration also contained detailed information relevant to the approval requirements for enterprise agreements under the FW Act, including information going to satisfaction of the better off overall test.

[23] The Union Declaration contained Mr O’Mara’s signature, and contained the same statement immediately above the signature as in the Employer’s Declaration. It was witnessed by Garry Hamilton, a solicitor employed by the CFMEU. The Union Declaration relevantly stated that Mr O’Mara had read the Employer’s Declaration and that insofar as the matters contained in that declaration were within Mr O’Mara’s knowledge, he agreed with them.

[24] The Coverage Notice stated that the CFMEU was a bargaining representative for the Agreement.

[25] The copy of the Agreement accompanying the approval application contained a signature page at the end. For MPR, the Agreement is stated to have been signed by Mr Josifoski, and his signature appears there. It appears to be the same signature as that for the deponent in the Employer’s Declaration. The date given is 5 August 2010. An address is also given. The name, signature, address and date are all handwritten. Beneath this, the Agreement is signed by Mr O’Mara on behalf of the CFMEU, and the date given is 10 August 2010.

The Decision

[26] The Decision reads simply as follows:

“[1] Being satisfied that the requirements of ss.185, 186, 187 and 188 have been met, Fair Work Australia approves the Agreement.

[2] The nominal expiry date is 31 December 2012

[3] In accordance with s.183, the Agreement covers the Construction, Forestry, Mining and Energy Union.”

Extension of time application - consideration

[27] The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland³as follows (footnotes omitted):

“[5]Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):

• whether there is a satisfactory reason for the delay;



• the length of the delay;



• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and



• any prejudice to the respondent if time were extended.”

[28] The list of relevant matters in Jobs Australia v Eland is not exhaustive. In this case we consider that there are powerful public interest considerations as to why an extension of time should not be granted. Enterprise agreements made and approved under Part 2-4 of the FW Act are a major element in the system of regulation of the employment conditions established by the FW Act. Once approved by the Commission, enterprise agreements operate for a number of years, substantially or wholly supplant the provisions of modern awards, and together with the National Employment Standards established in Part 2-2 constitute the major if not sole source of the entitlements of employees covered by them. Under s.50 of the FW Act, a breach of an enterprise agreement is a contravention of the FW Act which may be subject to monetary penalties under Part 4-1 of the FW Act. Enterprise agreements remain in effect until replaced by a further enterprise agreement or otherwise terminated in accordance with the relevant provisions of the FW Act.

[29] To allow an employer which has previously made or supported an application for the approval of an enterprise agreement and has represented to the Commission that the statutory approval requirements have been satisfied an extension of time to permit it to appeal the Commission’s decision to approve the agreement after the employer has been subject to court proceedings alleging a breach of that agreement would tend to undermine the stability of the whole system of enterprise agreements. It would mean that reliance could not be placed on the approval of enterprise agreements by the Commission, and would open the door to employers covered by enterprise agreements to search for defects in the approval process in order to challenge the validity of agreements when the compliance with such agreements becomes inconvenient to them. It would equally encourage unions which, for example, are subject to proceedings in which it is alleged they have organised industrial action during the nominal term of an enterprise agreement in breach of s.417 to take the same course. This would be likely to induce general uncertainty about whether approved enterprise agreements are enforceable instruments or merely have provisional status pending some further challenge to their validity.

[30] Further there ought be no encouragement of the idea that parties are free to depart, at a time which suits them, from representations made to the Commission during the enterprise agreement approval process. In approving enterprise agreements, the Commission is heavily reliant upon the provision by parties of information, by way of declarations in the prescribed form, demonstrating that the statutory requirements for approval have been satisfied. This is particularly because, in the vast majority of cases, there is nobody appearing before the Commission opposing the approval of the agreement. The lack of a contradictor makes it all the more important that the Commission is provided with truthful and accurate information by those parties who make or support applications for approval of enterprise agreements. No such party should think that they are subsequently at liberty to challenge the validity of the approval of an agreement on the basis that information which they provided to the Commission, or allowed to be provided to the Commission by another party without contradiction, is untrue or inaccurate.

[31] In this case it is apparent that the Senior Deputy President approved the Agreement substantially or wholly on the basis of the Employer’s Declaration which, on its face, was made by Mr Josifoski on behalf of MPR. Now, just under five years since the Agreement was approved and also (by the time of the hearing before us) after the Agreement has ceased to have effect, MPR seeks to appeal the decision to approve the Agreement as a consequence of court proceedings instituted against it to enforce the Agreement. In doing so, it contends that the information in the Employer’s Declaration which Mr Josifoski signed was substantially untrue. An extension of time to appeal in that situation would only be granted in extraordinary circumstances.

[32] It is not suggested, with one exception, that the Senior Deputy President made any error in approving the Agreement on the basis of the materials before him. The exception is that MPR advanced a submission that the Senior Deputy President should have identified and addressed the anomaly earlier discussed between the date stamp on the approval application and the accompanying documents and the dates of various events set out in the Employer’s Declaration. Had he done so, it was submitted, it would have led to inquiries being made of the parties and ultimately exposure of the inaccuracy or falsity of the Employer’s Declaration.

[33] This submission is rejected. It consists of a series of non-sequiturs. First, there is no basis to assume that the Senior Deputy President did not identify the anomaly on the basis that it was not mentioned in the Decision. It was an administrative error internal to FWA; if (as was the case in this appeal) the anomaly could be resolved by a few simple inquiries, it would be unlikely that it would merit any attention in the Decision. It cannot now be ascertained whether the Senior Deputy President did identify the anomaly. We note in this connection that the Senior Deputy President retired some years ago. Second, for similar reasons, there is no reason to think that identification of the anomaly would have required any contact with the parties. We were able to resolve it by wholly internal inquiries.

[34] MPR’s explanation for the significant delay in bringing the appeal is that it was unaware of the Employer’s Declaration and its legal significance in the approval process until the matter was exposed in the evidence before the Royal Commission. We do not consider that this is a correct characterisation of the events leading up to the lodgement of the appeal. It is clear that, whatever happened in 2010, Mr Josifoski and MPR’s lawyers became aware of the contents of the Employer’s Declaration on 15 July 2015. This was an event independent of the Royal Commission. The notice of appeal was not lodged until 13 August 2015, over four weeks later - that is, in excess of the 21 day period to appeal. There is no satisfactory explanation for this part of the delay.

[35] In any event, having heard the evidence adduced in support of the grant of an extension of time, we are not persuaded that MPR first became aware of the Employer’s Declaration on 15 July 2015. The following matters suggest that it is likely that MPR was aware of the Employer’s Declaration, its contents and its purpose at or around the time it was made on 5 August 2010:

• Mrs Rosa Josifoski, Mr Josifoski’s wife, who had responsibility for MPR’s paperwork and other administrative matters, partially completed a draft version of the Employer’s Declaration (which used the standard Form F17) on or shortly before 5 August 2010. The information filled out in this draft version found its way into the final version of the Employer’s Declaration signed by Mr Josifoski.



• Mrs Josifoski’s evidence (including her evidence before the Royal Commission which was placed before us) was that, having perused the draft Employer’s Declaration, she understood that such a declaration would have to go before FWA as part of the approval process for the Agreement and that Mr Josifoski would eventually have to execute the declaration on behalf of MPR.



• We consider it unlikely that Mrs Josifoski did not impart any of this to her husband, and in any event we consider that her knowledge about this may be imputed to MPR under s.793(2) of the FW Act.



• Mr Josifoski accepted that the signature on the Employer’s Declaration was his, but was unable to give any credible explanation as to how he came to sign it without becoming aware of its contents or even its existence.



• On 11 August 2010, after lodging the approval application accompanied by the Employer’s Declaration, the Union Declaration and the Coverage Notice with FWA, the CFMEU sent MPR a letter which stated, among other things: “We advised [sic] that Our Agreement and relevant paper work has now been lodged with Fair Work Australia (Copies Enclosed)”. We consider it likely that the enclosed copies of the “relevant paper work” lodged with FWA included the Employer’s Declaration. Mr and Mrs Josifoski were unable to deny that this was the case.

[36] We therefore do not consider that MPR has a satisfactory explanation for its delay in bringing the appeal.

[37] Additionally, we consider (in accordance with the principles stated in Jobs Australia v Eland) that the grant of an extension of time would cause unfair prejudice to the CFMEU. Having heard the evidence, it is clear to us that the passage of over five years since the Agreement was approved has meant that the witnesses on both sides no longer have any recollection of key events concerning the process by which the Agreement came into being and that relevant documents have been lost. If the appeal had been lodged within time, there is no doubt that witnesses would have retained an accurate recollection of the events, that all relevant documents would have been obtainable, and that firm findings of fact could have been made. In short, the CFMEU’s capacity to defend the appeal has been unfairly compromised.

[38] In summary, there has been an extremely long delay in bringing the appeal, there are powerful public interest considerations militating against the grant of an extension of time, the Decision was correctly made on the basis of the materials that were before FWA at the relevant time, MPR does not have a satisfactory explanation for the delay, and the grant of an extension would cause prejudice to the CFMEU. These matters all tend strongly against the grant of the extension sought.

[39] Against this, MPR contends that the extension should be granted because:

• The Employer’s Declaration was procured through improper conduct on the part of the CFMEU.



• The facts stated in the Employer’s Declaration concerning the issue of the notice of representational rights, access to the text of the Agreement being provided to employees, the terms of the Agreement being explained to the employees, notice being given of the time, date and method of the vote on the Agreement, and the conduct of the vote itself, were all incorrect. None of these things actually happened.



• FWA consequently exceeded its jurisdiction in approving the Agreement because the relevant approval requirements were not, on the facts as now known, satisfied. FWA did not obtain jurisdiction merely because the material before it at the time represented that the approval requirements had been satisfied.



• It is in the public interest to maintain the integrity of the system for approval of enterprise agreements. The Commission should not fail to intervene in respect of an enterprise agreement which is demonstrated to have been invalidly approved.

[40] It may be accepted that MPR’s case for an extension of time raises some significant issues. However if an extension of time were to be granted, consideration of MPR’s appeal (including its application for permission to appeal) would necessarily require the admission of all MPR’s evidence, and the CFMEU’s evidence in reply, and conclusions to be reached in respect of that evidence in order to determine whether the factual elements of the appeal were established.

[41] We have decided not to take that course. This is because, in addition to the factors summarised in paragraph [38] above, MPR’s counsel has informed us, with appropriate frankness, that if MPR is unsuccessful in these appeal proceedings, it intends in its defence of the Federal Circuit Court proceedings to advance a collateral challenge to the validity of the Agreement on the basis of the same or similar evidence. That is, the same case which we are being asked to hear will also be advanced in the Federal Circuit Court if either we decline an extension of time or we hear the appeal but reject it. The CFMEU did not contest before us that MPR is entitled to challenge the validity of the Agreement in its defence of the Federal Circuit Court proceedings.

[42] In circumstances where the issue the subject of this appeal may effectively be determined in the Federal Circuit Court proceedings, in a forum where all the outstanding issues between the parties may be determined to finality, we see no practical purpose in granting an extension of time to MPR. It is apparent that these appeal proceedings have only arisen because of the Federal Circuit Court proceedings instituted by the CFMEU. If MPR can run its invalidity point in the Federal Circuit Court, it suffers no prejudice from us refusing an extension of time to appeal. Further, we consider it to be undesirable to allow a situation where the same issue may be argued and determined twice (in this Commission and then in the Federal Circuit Court), with the potential of two different results pertaining.

[43] Having regard to all the considerations earlier discussed, we have therefore decided to refuse MPR an extension of time.

Conclusion

[44] We decline to grant MPR an extension of time to appeal. The appeal is therefore incompetent and must be dismissed.

VICE PRESIDENT

Appearances:

R. Warren of counsel with W. Ward solicitor for the Appellant.

S. Crawshaw SC with A. Neilson solicitor for the Respondent.

Hearing details:

2015.

Canberra:

20 and 21 October.

 1  [2010] FWAA 6435

 2   Transcript 20 October 2015 at PN71

3 [2014] FWCFB 4822

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