Mr John Morgan v McConnell Dowell Constructions (Aust) Pty Ltd
[2013] FWCFB 8013
•14 OCTOBER 2013
[2013] FWCFB 8013 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
McConnell Dowell Constructions (Aust) Pty Ltd
(C2013/5177)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 OCTOBER 2013 |
Appeal against decision [[2013] FWCA 3453] of Senior Deputy President Richards at Brisbane on 31 May 2013 in matter number AG2013/622.
[1] Mr John Morgan (Appellant) filed the appeal on 17 July 2013; some 26 days after the 21 day time limit imposed by the Fair Work Australia Rules 2010 expired. Accordingly, although the Notice of Appeal does not specify it, the Appellant is required to seek an extension of time to file the appeal.
[2] This appeal, for which permission to appeal is also required, challenges a decision, issued by Senior Deputy President Richards on 31 May 2013 (Decision), in which his Honour approved the McConnell Dowell Constructors (Aust) Pty Ltd QCLNG Export and Gas Header Pipeline Agreement 2013 (the Agreement). Although the Appellant was not a party to the original application for approval of the Agreement, he is an individual who is covered by it.
[3] In the hearing before his Honour, and in this appeal, there appears to be no issue that the content of the Agreement contained no impediment to its approval, and that the Agreement satisfied the “better off overall test” contained in s.193 of the Fair Work Act 2009 (the Act). Rather, the Appellant is contending that the employees covered by the Agreement did not genuinely reach an agreement.
Submissions
[4] Through the Appellant’s Notice of Appeal, various written correspondence to the Commission, sworn oral evidence given during the hearing of the appeal and the oral submissions, it can be said, in summary, that the Appellant contends that:
● He personally was not able to vote in the ballot as he was told that he would be sent a Short Message Service (SMS) on his mobile telephone and could cast his vote via SMS, although that did not occur;
● He is aware of others who, like him, were not able to vote as they were in remote locations;
● He filled out a form appointing the Construction, Forestry, Mining and Energy Union (CFMEU) as his bargaining representative, although he was not a financial member;
● The CFMEU were aware of the alleged deficiencies with the balloting process and objected to the approval of the Agreement when it was filed with the Fair Work Commission (the Commission);
● He was not notified that the CFMEU had withdrawn their objection, the reasons for the withdrawal, or that the Agreement had been approved. Once he had made enquiries and was told that the Agreement had been approved, around 8 July 2013, he prepared the Notice of Appeal and filed it with the Commission on 17 July 2013;
● He had attempted to make enquiries with the CFMEU, but his calls have been unanswered. He had also not been provided with a copy of the Commission file for the approval application and therefore cannot understand why the CFMEU would withdraw its objection;
● The employees did not genuinely agree to the approval of the Agreement as a number were not allowed to vote, and others were “coerced” into voting by supervisors who told them that if they did not vote ‘yes’, they would stay on the old agreement; and
● The employees could have gotten a better deal if they had kept negotiating as other sites have better enterprise agreements in place.
[5] In response, Mr Greg Power of Drayton’s Workplace Consulting, on behalf of McConnell Dowell Constructions (Aust) Pty Ltd (Respondent), submitted that:
● As the Notice of Appeal was filed out of time, and as the Appellant has not officially sought an extension, the Full Bench should not grant an extension of time to the Appellant;
● The Notice of Appeal does not contain any grounds of appeal that are readily able to be understood; and
● Any claims for irregularities in the ballot process were addressed by the Respondent in response to the objection raised by the CFMEU in the approval application.
[6] We note that all parties and employee organisations, including the CFMEU, involved in the approval of the Agreement were notified of the appeal lodged by the Appellant, but none sought to intervene or put on any submissions.
Relevant statutory provisions
[7] Section 186 of the Act sets out the basic requirements applicable to the approval of enterprise agreements. Subsections (1) and (2) provide:
“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.
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement--the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.”
[8] “Note 1” to subsection 2 states: “For when an enterprise agreement has been genuinely agreed to by employees, see section 188.” Section 188 of the Act provides:
“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.”
[9] For completeness, s.180(5) (which is referred to in s.188(a)(i)) provides:
“(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.”
[10] Appeals are dealt with by s.604 of the Act, which states:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
Consideration
[11] The appeal before the Full Bench appears to reflect the Appellant’s dissatisfaction with the CFMEU, and its lack of communication with the Appellant regarding the concerns he, and others it seems, had about the voting process. What is clear from the Appellant’s correspondence with the Commission is that the appeal was filed, in part, to allow the Appellant to view the file relating to matter AG2013/622 - the application for the approval of the Agreement, as the Appellant was not privy to the correspondence between the CFMEU and the Commission, and the Respondent and the Commission.
[12] As there was no objection from the Respondent, the Appellant was provided with a copy of the relevant correspondence at the hearing of the appeal. What the correspondence and the file generally reveal is that:
● On 3 April 2013, the CFMEU formally objected to the approval of the Agreement on the basis of voting irregularities which, it submitted, meant that there was no genuine agreement.
● On 16 April 2013, in response to the objection raised by the CFMEU, the Respondent filed submissions and a witness statement of Ms Deborah Grgic, the Human Resources Manager employed by the Respondent. The submissions and statement sought to address the concerns outlined by the CFMEU.
● On 23 April 2013, a further witness statement of Ms Grgic was filed by the Respondent.
● On 24 April 2013, the CFMEU notified the Commission that it wished to lead further evidence.
● On 6 May 2013, the CFMEU filed with the Commission a further witness statement.
● On 8 May 2013, Richards SDP listed the matter for a hearing on 27 May 2013.
● On 24 May 2013, the CFMEU emailed the Commission and stated:
“CFMEU is experiencing difficulties in witness availability for the hearing set down for Monday, 27 May and is not in a position to proceed. Given that Applicant has instructed the Commission that the project is nearing completion, CFMEU withdraws our objections to the approval of the Agreement. (sic)”
● On 27 May 2013, Richards SDP sought undertakings from the Respondent, on an unrelated issue.
● On 30 May 2013, the undertakings sought were provided.
● On 31 May 2013, the Agreement was approved and the Decision issued.
[13] In the Decision, Richards SDP noted that:
“[2]The approval process relating to this application was delayed owing to various objections raised by the Construction, Forestry, Mining and Energy Union. These objections were ultimately withdrawn immediately prior to the hearing. I have nonetheless benefited from the statutory declarations filed as part of the objection process for the purposes of my considerations here.”
[14] What is evident from the file and the Decision is that Richards SDP turned his mind to the objections raised by the CFMEU and was satisfied that the responses provided by the Respondent addressed the alleged failing of the ballot process raised by the CFMEU. There is no error in Richards SDP’s approach, and the finding was certainly open to him.
[15] Although the Full Bench is sympathetic to the Appellant’s position, as an employee who did not get an opportunity to vote and who believes that a better deal could have been struck, we do not consider that these factors in any way effect the Decision.
[16] The Appellant did raise the issue of coercion and submitted that some employees were “coerced” into voting in support of approval of the Agreement as supervisors had told them that if they did not vote in support of the Agreement, they would remain on the old agreement and would not get a pay rise. While allegations of coercion must be taken seriously, it was pointed out to the Appellant at the hearing of the appeal that, even if the supervisors had made those statements, of which no direct evidence was presented to the Full Bench, the statements were correct as a matter of law and therefore cannot be viewed as evidence of “coercion”.
[17] Furthermore, as stated above, the Appellant was required to file the Notice of Appeal within 21 days of the Decision. Having filed the appeal 26 days out of time, the Appellant must first satisfy the Full Bench that an extension of time should be granted. The Appellant provided sworn evidence that he was not notified of the withdrawal of the objection by the CFMEU, or of the approval of the Agreement until July 2013. Although much can be said about the lack of communication between the CFMEU and the employees it purported to bargain on behalf of, the Appellant acknowledged that he started receiving pay increases, pursuant to the Agreement, before July. Accordingly, given the insufficient explanation provided for the delay, and the lack of merits of the appeal, the Full Bench does not exercise its discretion to extend time to file the Notice of Appeal.
Conclusion
[18] In light of the above findings, the Full Bench does not grant the Appellant an extension of time to file the Notice of Appeal, and accordingly, the appeal must be dismissed.
VICE PRESIDENT
Appearances:
J. Morgan appearing for himself.
G. Power for McConnell Dowell Constructions (Aust) Pty Ltd.
Hearing details:
2013.
Brisbane:
September 24.
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