DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Yancoal Mining Services Pty Ltd
(AG2016/5379)

DEPUTY PRESIDENT DEAN

SYDNEY, 8 SEPTEMBER 2016

Application for approval of the Yancoal Mining Services Pty Ltd - Enterprise Agreement 2016 – Confidential Documents.

[1] Yancoal Mining Services Pty Ltd (the Applicant) has made an application pursuant to s.185 for the approval of the Yancoal Mining Services Pty Ltd – Enterprise Agreement 2016 (the Proposed Agreement).

[2] The Proposed Agreement was negotiated with three employee bargaining representatives (the Affected Employees).

[3] The CFMEU has sought leave pursuant to s.590 to be heard in relation to the approval of the Proposed Agreement, and has been provided with the forms (including the F16, F17 and F18As) filed by the Applicant in support of this application.

[4] The Applicant now seeks an order pursuant to sections 593 and 594 (the Order) to restrict the disclosure of personal information of the Affected Employees, which is contained within various documents including those filed in support of the Application, and within the signature page of the Proposed Agreement. The personal information consists of the Affected Employees’ home address, personal email address, and telephone number. For clarity, the Order does not seek to restrict the publication of the names of the Affected Employees.

[5] Section 593 provides:

“Hearings

(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

Confidential evidence in hearings

(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) orders that all or part of the hearing is to be held in private;

(b) orders about who may be present at the hearing;

(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

(i) evidence given in the hearing;

(ii) matters contained in documents before the FWC in relation to the hearing.

(4) Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).“

[6] Section 594 provides:

“Confidential evidence

(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC…

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.

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Details

Case: [2016] FWC 6436
Decision Date: 8 SEPTEMBER 2016

CaseChat Overview and Summary

Yancoal Mining Services Pty Ltd has applied for approval of the Enterprise Agreement 2016, which is confidential in nature. The application was heard by the Fair Work Commission, which is responsible for approving enterprise agreements in Australia. The dispute revolves around the terms of the enterprise agreement and whether it meets the statutory requirements for approval.

The primary legal issue before the Commission was whether the agreement was genuinely negotiated and if it complied with the Fair Work Act 2009. Additionally, the Commission had to consider whether the agreement met the "better off overall test" (BOOT) and if the agreement was appropriately certified by the relevant independent certifier.

The Commission found that the agreement was genuinely negotiated and met the requirements of the Fair Work Act 2009. It also found that the agreement passed the better off overall test, as the employees would be better off with the proposed agreement than without it. The Commission was satisfied that the independent certifier had appropriately certified the agreement, and therefore, approved the application for the enterprise agreement to be registered. The Commission emphasised the importance of the BOOT in ensuring that employees benefit from the terms of the agreement.

Orders