1
Fair Work Act 2009
s.615A(2)—Application for the President to direct a Full Bench to perform a function
Application for approval of the Collinsville Coal Operations Enterprise
Agreement 2014
(AG2014/568)
JUSTICE ROSS, PRESIDENT MELBOURNE, 13 MAY 2014
Referral to a Full Bench - Fair Work Act 2009 (Cth) - ss 582 and 615A. Application refused.
[1] Collinsville Coal Operations Pty Ltd (Collinsville) has made an application pursuant
to section 185 of the Fair Work Act 2009 (Cth) (the FW Act) for the approval of a single
enterprise agreement. Pursuant to s.615A(2) the Construction, Forestry, Mining and Energy
Union (CFMEU) has sought a direction under s.582 that a Full Bench hear and determine the
application.
[2] Section 615A of the FW Act states:
615A When the President must direct a Full Bench to perform function etc.
(1) The President must direct a Full Bench to perform a function or exercise a power
in relation to a matter if:
(a) an application is made under subsection (2); and
(b) the President is satisfied that it is in the public interest to do so.
Note: The President gives directions under section 582.
(2) The following persons may apply to the FWC to have a Full Bench perform a
function or exercise a power in relation to a matter:
(a) a person who has made, or will make, submissions for consideration in the
matter;
(b) the Minister.
[3] The CFMEU made submissions in support of its application in proceedings before
Senior Deputy President Harrison on Friday 2 May 2014. Her Honour has provided me with a
summary of the matters which the CFMEU submitted warrant consideration by a Full Bench,
as follows:
1. Should the Fair Work Commission (FWC) require Collinsville Coal Operations Pty
Ltd (the applicant) to provide copies of documents or records or any other information
to the FWC as requested by the CFMEU?
2. If the answer to Question 1 is yes, should the FWC allow access to the CFMEU?
[2014] FWC 3129
DECISION
AUSTRALIA FairWork Commission
[2014] FWC 3129
2
3. Should the FWC require Mr Bernie O’Neill, the deponent of the applicant’s Form 16
and Form 17, to attend before the FWC at the hearing of the Application for approval
of the Collinsville Coal Operations Enterprise Agreement 2014 (the Application)?
4. If the answer to Question 3 is yes, should the FWC allow the CFMEU to cross-
examine Mr O’Neill?
5. Should the FWC inform itself in respect of the Application by taking evidence from
the CFMEU?
6. Is the Full Bench’s decision in McDonald’s Australia Pty Ltd v Shop, Distributive and
Allied Employees’ Association [2010] FWAFB 4602 at [40]-[43], wrongly decided
and should it not be followed?
7. Is the correct statutory interpretation of s186(6) of the Fair Work Act 2009 (Cth) that
there must be an allowance for employee representation which requires that such
representation occur at every step or, as provided for in clause 20 of the Collinsville
Coal Operations Enterprise Agreement 2014, can employee representation be
excluded in that agreement’s Step 1?
[4] I have had regard to her Honour’s summary of the CFMEU’s submissions and to the
transcript of the proceedings before her Honour.
[5] The issue for determination is whether I am satisfied that it is in the public interest to
refer the agreement approval application to a Full Bench. The expression ‘in the public
interest’, when used in a statute, imports a discretionary value judgment to be made by
reference to undefined factual matters and confined only by the subject matter, scope and
purpose of the relevant statute.1
[6] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s
powers under s 615A.
[7] Section 577 provides as follows:
“The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and
exercises its powers efficiently etc. (see section 581).”
[8] Section 578 directs the Commission to take into account, among other things, the
objects of the FW Act and ‘equity, good conscience and the merits of the matter’.
[9] Section 581 is also apposite. It provides, relevantly, that the President is responsible
for ensuring that the Commission performs its functions and exercises its powers in an
efficient manner.
[2014] FWC 3129
3
[10] I am not persuaded that it is in the public interest to refer the application to a Full
Bench as I am not persuaded that the submissions advanced on behalf of the CFMEU
sufficiently enliven the public interest.
[11] The efficient allocation of the Commission’s resources is also a relevant consideration.
The hearing is likely to take some time and involve a number of interlocutory determinations.
The duration and nature of the proceedings are such that it is more suited to determination by
a single Member, rather than a Full Bench.
[12] As I am not satisfied that it is in the public interest to direct a Full Bench to hear and
determine the application, the CFMEU’s s.615A application must be dismissed.
Printed by authority of the Commonwealth Government Printer
Price code A, PR550508
1 O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ
COMMISSION LUSTR ALIA THE SEAL OF FAIR PRESIDENT
