Qube Bulk Pty Ltd t/a Qube Ports & Bulk v Construction, Forestry, Maritime, Mining and Energy Union
[2021] FWCFB 6072
•17 DECEMBER 2021
| [2021] FWCFB 6072 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Qube Bulk Pty Ltd t/a Qube Ports & Bulk
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2021/7981)
VICE PRESIDENT HATCHER | SYDNEY, 17 DECEMBER 2021 |
Appeal against decision [2021] FWCA 6549 of Deputy President Masson at Melbourne on 4 November 2021 in matter number AG2021/7806
[1] Qube Bulk Pty Ltd (Qube) has, pursuant to s 604 of the Fair Work Act 2009 (FW Act), applied for permission to appeal and appealed a decision 1 made by Deputy President Masson on 4 November 2021 in which he approved the Qube Bulk Pty Ltd Gladstone Enterprise Agreement 2021 (Agreement).2 In approving the Agreement, the Deputy President said:
“[4] The Maritime Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.”
[2] Qube contends in its notice of appeal that the Deputy President erred in noting that the “Maritime Union of Australia” (MUA) was covered by the Agreement. It submits that the MUA was not a bargaining representative for the Agreement and, accordingly, seeks that permission to appeal be granted, the appeal upheld and the decision varied to remove the notation pursuant to s 607(3)(a) of the FW Act.
[3] Section 201(2) of the FW Act requires the Commission to “note” in a decision to approve an enterprise agreement that the agreement covers an employee organisation that has given a notice under s 183(1) that the organisation wants the agreement to cover it. Section 183(1) provides that such a notice may be given, in respect of an enterprise agreement that has been made which is not a greenfields agreement, by an employee organisation that was a bargaining representative for the proposed agreement concerned. An employee organisation is one that is registered under the Fair Work (Registered Organisations) Act 2009.
[4] It is not in dispute that the MUA was not, at any relevant time in relation to bargaining for the Agreement, an employee organisation. It was deregistered in 2018 as part of the amalgamation with what is now the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The CFMMEU gave notice pursuant to s 183(1) that it wanted the Agreement to cover it, but the Deputy President did not note in his decision that the Agreement covered the CFMMEU.
[5] We consider, pursuant to s 607(1), that this appeal can be adequately determined without persons making oral submissions for consideration in the appeal, and the persons who would otherwise have made submissions in the appeal (Qube and the CFMMEU) consent to the appeal being determined without a hearing.
[6] It is clear that the notation in the decision that the Agreement covers the MUA was an error because, as explained, the MUA was not an employee organisation (nor a bargaining representative) at any relevant time and accordingly could not give a notice under s 183(1).
[7] Because the CFMMEU gave notice under s 183(1) that it wanted to be covered by the Agreement, we have considered whether the reference to the MUA in paragraph [4] of the decision was a mistake and intended to be a reference to the CFMMEU. However, Qube submitted that the CFMMEU was not a bargaining representative for the Agreement because, regardless of whether it had coverage of the employees covered by it, the seven employees who made the Agreement nominated a separate bargaining representative during the bargaining process. The CFMMEU accepted that this was the case. It submitted, in an email dated 16 December 2021:
“… I confirm the CFMMEU does not resile from its position in relation to its eligibility to cover employees of the Appellant covered by this Agreement. Further, despite the assertions of the Appellant with respect to the CFMMEU’s membership, the CFMMEU does not concede that it does not have members who are covered by the Agreement.
However, now that we have had a chance to reflect on the unredacted form F17 which was only provided to us on 6 December, we note there were only seven employees covered by the proposed agreement at the relevant time and that all seven employees appointed a bargaining representative for the proposed agreement. Given the provisions of s.176, the appointment of bargaining representatives for each of the seven employees would appear to terminate the default bargaining representative status of the CFMMEU.”
[8] On the basis of the above submission, the CFMMEU stated that it did not oppose the appeal.
[9] It is clear therefore that, even if the reference to the MUA in paragraph [4] of the decision was intended to be a reference to the CFMMEU, that would also be an error since the CFMMEU was not a bargaining representative for the Agreement and therefore could not validly give notice pursuant to s 183(1).
[10] For the above reasons, we make the following orders:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision in matter number AG2021/7806 made on 4 November 2021 ([2021] FWCA 6549) is varied by deleting paragraph [4].
VICE PRESIDENT
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