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…

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.

Continue reading One Key Coal QLD Pty Ltd

Details

AGLC: One Key Coal QLD Pty Ltd [2018] FWC 256
Case: [2018] FWC 256
Decision Date: 15 January 2018

CaseChat Overview and Summary

One Key Coal QLD Pty Ltd applied to the Fair Work Commission for approval of the OKR QLD Coal Enterprise Agreement 2017. The Construction, Forestry, Mining and Energy Union (CFMEU) sought to be heard in relation to the application. The CFMEU argued that it should be granted standing to be heard either as a matter of procedural fairness or under the discretion in s.590 of the Fair Work Act 2009 (Cth) to be heard if invited by the Commission. One Key Coal QLD Pty Ltd opposed the CFMEU being heard. The Commission considered whether the CFMEU had a right to be heard as a matter of procedural fairness and whether it should exercise its discretion under s.590 to invite the CFMEU to be heard. The Commission found that the CFMEU had not provided sufficient evidence to demonstrate that approval of the Proposed Agreement would impact any right, interest or legitimate expectation held by the CFMEU, and therefore it should not be granted standing as a matter of procedural fairness. However, the Commission exercised its discretion under s.590 to invite the CFMEU to be heard. The CFMEU would be invited to provide written and oral submissions and could appear as a contradictor in the proceeding. The matter would be listed for a further Directions Conference.

The Fair Work Commission exercised its discretion under s.590 of the Fair Work Act 2009 (Cth) to invite the CFMEU to be heard in relation to One Key Coal QLD Pty Ltd's application for approval of the OKR QLD Coal Enterprise Agreement 2017. The Commission found that the CFMEU did not have a right to be heard as a matter of procedural fairness because it had not demonstrated that approval of the agreement would adversely impact any right, interest or legitimate expectation held by the CFMEU. However, the Commission exercised its broad discretion under s.590 to invite the CFMEU to be heard, taking into account the CFMEU's expertise and knowledge of the coal industry, the absence of other contradictors, and the need to ensure compliance with the Better Off Overall Test and other protective provisions in the Act. The CFMEU was invited to provide written and oral submissions and could appear as a contradictor in the proceeding. The matter would be listed for a further Directions Conference.

Orders