One Key Coal QLD Pty Ltd

[2018] FWC 256

[2018] FWC 256

FAIR WORK COMMISSION

INTERIM DECISION

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

One Key Coal QLD Pty Ltd
(AG2017/5445)

COMMISSIONER BOOTH BRISBANE, 15 JANUARY 2018

Application for approval of the OKR QLD Coal Enterprise Agreement 2017 – standing of union to be heard in relation to Application.

[1] On 10 November 2017, One Key Coal QLD Pty Ltd (OKR) filed an application with the Fair Work Commission (the Commission) under s.185 of the Fair Work Act 2009 (Cth) (the Act) for approval of the OKR QLD Coal Enterprise Agreement 2017 (the Proposed Agreement).

[2] On 14 November 2017, the Commission received correspondence from the Construction, Forestry, Mining and Energy Union (CFMEU) advising of its interest in this matter, and requesting a copy of the Form F16 and Form F17 filed by OKR. Subsequent to this request, the Member Support Team of the Commission provided a copy of the Form F16, and a redacted copy of the Form F17 and Notice of Employee Representational Rights (NERR) to the CFMEU on 16 November 2017.

[3] On 20 November 2017, the CFMEU wrote to the Commission seeking a copy of the Form F17 without the information in paragraph 2.10 being redacted.

[4] On 28 November 2017, the CFMEU filed submissions regarding seeking to be heard in accordance with s.590(1) of the Act.

[5] On 6 December 2017, I held a Directions Conference by telephone with OKR and the CMFEU. Following this Directions Conference, I instructed my Associate to serve a copy of the Form F17 on the CFMEU, without the information redacted.

[6] Directions were issued on 7 December 2017, seeking further submissions from the CFMEU regarding permission to be heard under s.590, and OKR’s reply submissions on this section. In accordance with these Directions, the CFMEU filed their material on 11 December 2017, and OKR filed their reply material on 14 December 2017.

[7] The CFMEU submits that the discretion under s.590 should be exercised by the Commission, and that it should therefore be invited to be heard.

[8] OKR submits the CFMEU is not a bargaining representative for any of the employees who voted for the Proposed Agreement, and does not “have any right to be heard” 1 and OKR submits that for the CFMEU to be heard in this matter, they must be invited to be heard under s.590 of the Act.2

CONSIDERATION

[9] In Neptune Diving Services Pty Ltd v Maritime Union of Australia 3(the Neptune Decision), Deputy President Binet noted the various ways an employee organisation might establish standing to be heard in relation to an application for approval of an proposed agreement. The relevant ways4 for the purposes of this application are:

•  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.

•  If invited by the Commission in the exercise of its power under s.590 of the FW Act to inform itself.

Right to be heard as a matter of procedural fairness

[10] In the Neptune Decision,Deputy President Binet noted that:

“As a matter of procedural fairness, standing may be granted to an employee organisation who is not a bargaining representative if the organisation can identify a right, interest or legitimate expectation that might be affected, or potentially affected, by the decision to approve an agreement”. 5

[11] In Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited 6(the Collinsville Decision)it was found that a history of representation and membership at the worksite may not of itself be enough to create a legitimate expectation to attract a right to be heard.7

[12] Further, “the fact that an employee organisation has among its interest, objections or expectations that it will obtain and maintain reasonable employment conditions for its members is an insufficient basis to create a right, interest or legitimate expectation which would found a right to be heard in relation to an application”. 8

[13] In its submissions, OKR submits that the CFMEU has no “right, interest or legitimate expectation” to be heard in this matter as a matter of procedural fairness. 9 It further submits that approval of the Proposed Agreement will not displace or alter the rights and obligations of the CFMEU regarding the employees to be covered by the Proposed Agreement.10

[14] The CFMEU has not provided sufficient evidence to demonstrate that approval of the Proposed Agreement would impact any right, interest or legitimate expectation held by the CFMEU. I am not satisfied that the CFMEU should be granted standing as a matter of procedural fairness.

Invited to be heard under s.590 of the Act

[15] In the Collinsville Decision, 11 it was confirmed that under s.590, the Commission may choose to hear from an employee organisation about the approval of an agreement even where the employee organisation may not otherwise have a right to be heard.12

CFMEU Submissions

[16] The CFMEU submits that, in accordance with the Collinsville Decision, it has a right to be heard under s.590. 13

[17] The CFMEU submits that it has members who are employed by various companies in the One Key Group in the coal mining industry, and that this background lends strength to the CFMEU’s argument that it should be heard in this matter. 14 Further, the CFMEU submits that it can “positively assist” the Commission15 as, among other things: it possesses a detailed knowledge of the relevant award and enterprise agreement provisions in the coal mining industry; it was intricately involved in the making of the Black Coal Mining Industry Award 2010; and it has significant national membership in the coal mining industry and members who perform the same work as is covered by the Proposed Agreement.16 The CFMEU submits that these are factors which have previously caused the Commission to exercise its discretion to hear from a union under s.590.17

[18] On this point, the CFMEU makes reference to the Neptune Decision, and Deputy President Binet’s following statement:

“The MUA are no strangers to the issues under consideration in this matter. The MUA have a long established history of industrial representation in the inshore diving industry and the industrial right to represent NDS employees who would be covered by the Proposed Agreement. As a consequence, they have a high degree of familiarity with the reference award, the work arrangements in the inshore diving industry, and enterprise agreement terms and conditions similar to those contained in the ProposedAgreement. The MUA can provide a perspective independent of the author and proponent of the Proposed Agreement (NDS), who have a commercial interest in the Proposed Agreement being registered”. 18

[19] Reference was also made in the CFMEU’s submissions to the decision of Commissioner Roe in Perth Scaffolding Pty Ltd 19 where it was found that the CFMEU’s significant membership in the relevant industry, and the likelihood of members being employed by the company at some point in the future, were grounds for inviting the Union to be heard.20

[20] The CFMEU also made reference to Commissioner Cambridge’s statement in Mr Irving Warren (the Warren Decision) 21:

“The Commission is required to ensure that the Agreement complies with the Act, and the resolution of any concerns which have been identified should be conducted with transparency and appropriate vigour. Registered organisations with a legitimate interest in the industry and occupations covered by the Agreement may assist in the resolution of these issues of concern.” 22

[21] In their supplementary submissions of 11 December 2017, the CFMEU submits that it holds concerns regarding the legitimacy of the Proposed Agreement. It submits that the Proposed Agreement was made with 11 employees “for the purpose of avoidance of genuine bargaining”, and that the steps under s.180(5) of the Act were not complied with, hence there was no entitlement to request employees under s.180(1) to approve the Proposed Agreement. 23 Further, it submits that there are issues surrounding “genuinely agreed” under sections 186 and 188 of the Act.24

[22] Here, the CFMEU relies on the decision in CFMEU v One Key Workforce Pty Ltd (the One Key Decision), 25 where it was found that the relevant agreement was procured to avoid genuine bargaining. The CFMEU submits that this present case is another example of this strategy. Further, the CFMEU submits there is “potential for manipulation of the agreement-making procedures,”26  and that in these circumstances, the Commission must “deal with the possibility of unfair exploitation”. 27 It submits that OKR is unlikely to present these facts impartially.28

OKR Submissions

[23] In its reply submissions, OKR submits that the power under s.590 is akin to the power of the courts to permit an “amicus curiae”(friend of the court) to make submissions. OKR therefore submits that in exercising its discretion under s.590, the Commission must have regard to the principles developed by the court to determine whether to permit a person to be heard. 29 In particular, OKR notes that the court has established that it must be cautious in considering applications to be heard, “lest the efficient operation of the court would be prejudiced”.30

[24] OKR submits that the Commission should not exercise its discretion under s.590 for the following reasons:

•  The CFMEU has not made their application to be heard in respect of any “right, interest or legitimate expectation”, and does not do so as a bargaining representative.

•  The Commission will not be assisted by the submissions of the CFMEU in the exercise of its functions. In particular, OKR submits that the CFMEU had no involvement in, and no knowledge of, the bargaining that occurred with the employees of OKR. 31 It submits that the CFMEU’s submissions on this point would merely be speculative.32

•  The Commission must not permit the CFMEU, as a third party, to “effectively hijack the parties’ case”, 33 and that the application for approval of the Proposed Agreement should not be unnecessarily delayed by a non-party, which here is the CFMEU.34 It submits that the CFMEU’s involvement in this matter will substantially lengthen the time required of the Commission and the parties.35 It is submitted by OKR that this delay is disproportionate to the assistance which may be provided by the involvement of the CFMEU.36

•  OKR considered a reliance on the One Key Decision is misplaced following the recent decision on the High Court in ALDI Foods Pty Limited v Shop Distributive & Allied Employees Association (the ALDI Decision), 37particularly on the point of the agreement not being capable of approval because it was made with a small number of employees. In the ALDI Decision, the Court found as follows:

“[86] On any construction, s 172(2)(a) may be used to make an enterprise agreement with two or more employees for an already existing enterprise. In the case of a small but already existing enterprise, it is uncontroversial that the votes of a few original employees may eventually bind a much larger group as the enterprise grows. The construction of the majority of the Full Court does nothing to remove that possibility, nor could it.

[87] Yet, in relation to new enterprises, the approach of the majority of the Full Court treats that possibility as unacceptable. Rather than countenance the possibility, expressly contemplated by s 172(2)(a), that a few original employees may make an agreement in relation to a proposed new enterprise that will later bind a larger group, the majority of the Full Court ignored the language of s 172 and adopted a strained construction of s 186(2)(a). That strained construction had the effect of denying those employees the capacity to make an agreement capable of receiving approval. Presumably it was because of the involvement of employee organisations in the making of greenfields agreements that the majority of the Full Court saw its concern as remedied by that construction. However, given that employees involved in making a non-greenfields agreement might, if they wished, appoint an employee organisation as a bargaining representative, and given the additional protections of sub-ss (3) and (3A) of s 186, and the need to pass the BOOT, no good reason, in terms of the purpose of the Act, justifies that strained construction.” 38

[25] OKR are opposed this application generally but submit that if the Commission is inclined to invite submissions then it should only be on the basis of the Better Off Overall Test (BOOT). It makes reference to the Warren Decision. 39

CONCLUSION

[26] In this case I have concluded that the discretion should be exercised.

[27] I do so in reliance on the combined authorities of the Collinsville Decision and Aldi Decision.

[28] The Collinsville Decision makes explicit that despite no right to be heard, the Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate. This could include the CFMEU being heard on all aspects as to agreement approval including the BOOT.

[29] The Aldi Decision confirms that the Act’s “additional protections” include the requirement for an agreement to pass the BOOT. Additional “protective provisions” 40 exist under s.186(3) and s.186(3A) of the Act, which provide, along with the right to represent, that the Commission must be satisfied the group of employees covered by the agreement was fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct.

[30] Exercising the broad discretion, and ensuring compliance with the BOOT and fairly chosen provisions of the Act, will be assisted by inviting the CFMEU to be heard. In this regard I have taken into account that the Proposed Agreement operates in the black coal industry in Queensland where the CFMEU has a presence, and there is no other contradictor in the application for approval.

[31] The CFMEU will be invited to provide written submissions and oral submissions. It is entitled to appear as a contradictor and be heard on the application.

[32] This matter will be listed for further Directions Conference.

COMMISSIONER

 1 OKR submissions dated 14 December 2017 at [2].

 2   Ibid at [8]-[9].

 3   [2017] FWC 5955.

 4   For example the CFMEU notes it is not a bargaining representative and cannot therefore establish standing in this way.

 5   Neptune Diving Services Pty Ltd v Maritime Union of Australia [2017] FWC 5955 at [13].

 6   [2014] FWCFB 7940.

 7   Neptune Diving Services Pty Ltd v Maritime Union of Australia[2014] FWCFB 7940 at [61]-[65].

 8 Ibid at [18].

 9 OKR submissions dated 14 December 2017 at [3].

 10 Ibid at [5].

 11   [2014] FWCFB 7940.

 12   Construction, Forestry, Mining and Energy Union (CFMEU) v Collinsville Coal Operations Pty Limited[2014] FWCFB 7940 at [75].

 13 CFMEU submissions dated 28 November 2017 at [7].

 14   Ibid at [10]-[11].

 15 Ibid at [12].

 16   Ibid at [12]-[13].

 17 Ibid at [14].

 18   Neptune Diving Services Pty Ltd v Maritime Union of Australia[2017] FWC 5955 at [23].

 19   [2016] FWC 8042.

 20 Ibid at [2].

 21   [2017] FWC 4787.

 22   Mr Irving Warren [2017] FWC 4787 at [39].

 23 CFMEU submissions dated 11 December 2017 at [6].

 24 Ibid at [10].

 25 [2017] FCA 1266.

 26 CFMEU v John Holland Pty Ltd [2015] FCAFC at [34]-[41]; CFMEU submissions dated 11 December 2017 at [8].

 27   CFMEU v John Holland Pty Ltd [2015] FCAFC at [33]; CFMEU submissions dated 11 December 2017 at [8].

 28   CFMEU submissions dated 11 December 2017 at [8]-[9].

 29   OKR submissions dated 14 December 2017 at [9]-[12].

 30 Ibid at [12].

 31 Ibid at [16].

 32   Ibid.

 33   Re Robert Bropho v Robert Tickner and Bluegate Nominees Pty Ltd (1993) 40 FCR 165 at 171; OKR submissions dated 14 December 2017 at [17].

 34   MMA Offshore Logistics Pty Ltd T/A MMA Offshore Logistics [2016] FWC 3789 at [55]; OKR submissions dated 14 December 2017 at [18].

 35 OKR submissions dated 14 December 2017 at [19].

 36 Ibid at [20].

 37 [2017] HCA 53; OKR submissions dated 14 December 2017 at [25].

 38   ALDI Foods Pty Limited v Shop Distributive & Allied Employees Association [2017] HCA 53 at [86]-[87].

 39   [2017] FWC 4787; OKR submissions dated 14 December 2017 at [23] and [27].

 40   ALDI Foods Pty Limited v Shop Distributive & Allied Employees Association [2017] HCA 53 at [84].

Printed by authority of the Commonwealth Government Printer

<PR599490>