1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Mining and Energy Union
v
Collinsville Coal Operations Pty Limited
(C2014/1098)
VICE PRESIDENT HATCHER SYDNEY, 27 JUNE 2014
Application to stay a reserved decision of Senior Deputy President Harrison at Brisbane on
16 June 2014 in matter number AG2014/568.
[1] On 13 March 2014 Collinsville Coal Operations Pty Limited (Collinsville) filed an
application under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise
agreement (Agreement) made with 21 employees named in the application. Each employee
was described in the application as being a “self-appointed Bargaining Representative”.
[2] The hearing for approval of the Agreement took place before Senior Deputy President
Harrison on 2 May and 16 June 2014. The Construction, Forestry, Mining and Energy Union
(CFMEU) sought to be heard in relation to the application. It sought to make submissions to
the effect that approval of the Agreement would be contrary to the objects of the Act and to
equity, good conscience and the merits of the matter, that the Agreement had not genuinely
been agreed to by employees in accordance with s.188 of the Act, that there was a lack of
authenticity and moral authority in the Agreement, that there was no fair agreement-making
between the employer and the employees, and that the Agreement did not pass the better off
overall test (BOOT) in s.193 of the Act. The CFMEU submitted that it had a direct interest in
the matter because it was a bargaining representative for one employee, it had a historic role
and interest in the black coal mining industry, and had previously represented large numbers
of persons who had worked at the Collinsville mine for a previous operator and were now
unemployed.
[3] During the course of the hearing, the Senior Deputy President made a number of
interlocutory rulings affecting the CFMEU’s role in the proceedings (Decisions), including
that:
the CFMEU was not permitted to have access to certain documents;
summonses for production of documents applied for by the CFMEU were not to be
issued;
certain submissions made by the employer from the bar table on disputed or
challenged matters would be accepted;
the CFMEU was not allowed to adduce evidence or be heard on certain aspects of the
case it wished to agitate in opposition to the approval of the Agreement, including as
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DECISION
E AUSTRALIA FairWork Commission
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to the genuineness of agreement under s.188 and whether the matter constituted a test
case;
the CFMEU was confined to making submissions about the application of the BOOT;
the CFMEU was not permitted to cross-examine witnesses about certain matters;
the CFMEU was not a bargaining representative for the purpose of the proceedings;
and
an adjournment to allow the CFMEU to lodge a notice of appeal and have a stay
application heard was refused.
[4] On 13 May 2013 the President of the Commission dismissed an application by the
CFMEU under s.615A of the Act for Collinsville’s application for approval of the Agreement
to be referred to a Full Bench for hearing and determination.1 The President’s reasons for his
decision included the following:
“[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.”
[5] The Senior Deputy President reserved her decision concerning Collinsville’s
application at the conclusion of the hearing on 16 June 2014 (subject to the parties being
directed to confer and provide advice as to the precise identification of the evidentiary
materials that were before her).
[6] On 23 June 2014 the CFMEU lodged a notice of appeal against the Decisions. The
Decisions are described with greater particularity in the notice of appeal. It is contended in the
notice of appeal that the Senior Deputy President erred in making the Decisions in the
following respects (particulars excluded):
“1. The Senior Deputy President erred in acting inconsistently with or
disharmoniously when compared to the recent five-member Full Bench
approach and decision in Peabody Moorvale Pty Ltd v Construction,
Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042
(Peabody Moorvale).
2. The Senior Deputy President denied the CFMEU procedural fairness or
natural justice in not requiring the production of documents or records
and/or then allowing the CFMEU access to documents or records, as any
discretion as to relevant procedures for access to documents is subject to the
overarching obligation of the Commission to ensure a reasonable opportunity
to present a case.
1 [2014] FWC 3129
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3. The Senior Deputy President denied the CFMEU procedural fairness or
natural justice by not giving the CFMEU a reasonable opportunity to
present its case, in that the CFMEU was not permitted to adduce all of its
own evidence.
4. The Senior Deputy President denied the CFMEU procedural fairness or
natural justice by not giving the CFMEU a reasonable opportunity to
present its case, in that the CFMEU was not permitted the opportunity to
cross-examine Mr Bernie O’Neill (the maker of the employer’s Form 17)
and Mr David Olive (who made an affidavit for the employer concerning
“the Company’s Fatigue Management Policy” that is incorporated by
reference in the purported enterprise agreement).
5. The Senior Deputy President denied the CFMEU procedural fairness or
natural justice by not giving the CFMEU a reasonable opportunity to present
its case or otherwise acted in a manifestly unjust manner.
6. The Senior Deputy President erred in accepting the employer’s written
submissions or oral submissions from the bar table and/or not requiring for
the Commission to be satisfied about statutory pre-approval steps or
prerequisites by the hearing of evidence.
7. The Senior Deputy President erred in deciding that the CFMEU is not a
bargaining representative and, accordingly, does not have that status in this
application for approval of this agreement.
8. The Senior Deputy President erred in not adjourning the proceedings
following an application by the CFMEU.
9. The Senior Deputy President erred in upholding the employer’s objection to
the CFMEU making and developing a submission that this was a test case
about the role of the CFMEU because a modus operandi emerging in the
black coal industry for both owner operators and contractors is to have a
handful of employees involved in making an enterprise agreement and then
having it apply to a larger group of employees.
10. Any one error or combination of errors as pleaded above, worked a
substantial injustice to the CFMEU and denied it substantive rights.”
[7] The notice of appeal also contended that permission to appeal should be granted in the
public interest because the approach of the Senior Deputy President was disharmonious with
the Full Bench decision in Peabody Moorvale, the Decisions manifested an injustice, the
considerations in ss.3(a) and (e) of the Act needed to be taken into account, Full Bench
guidance was required as to the role of registered organisations with an interest beyond that of
an ordinary member of the public in first instance and appeal matters, the appeal raised issues
of importance and general application, and the appeal was a test case concerning enterprise
bargaining in the black coal industry.
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[8] The CFMEU has applied for a stay of the Decisions pending the hearing and
determination of its appeal. The stay order sought is that the Decisions (including the refusal
to adjourn the proceedings) be stayed “on terms and conditions that the EA application is
adjourned until a Full Bench determines the appeal or makes orders it considers appropriate”.
[9] The power to grant a stay pending the hearing and determination of an appeal lodged
under s.604 is contained in s.606(1), which provides:
(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review
of, a decision, the FWC may (except as provided by subsection (3)) order that the
operation of the whole or part of the decision be stayed, on any terms and conditions
that the FWC considers appropriate, until a decision in relation to the appeal or review
is made or the FWC makes a further order.
[10] The principles concerning whether a stay application will be granted are well-
established. They are as stated in Edghill v Kellow-Falkiner Motors Pty Ltd2:
“In determining whether to grant a stay application the Commission must be satisfied
that there is an arguable case, with some reasonable prospect of success, in respect of
both the question of leave to appeal and the substantive merits of the appeal. In
addition, the balance of convenience must weigh in favour of the order subject to
appeal being stayed. Each of the two elements referred to must be established before a
stay order will be granted.”
[11] However the application of those principles is necessarily subject to it being
demonstrated at the outset by the applicant for a stay that there is an operative decision with
ongoing or future effect capable of being stayed under s.606(1). It is not clear to me that this
has been demonstrated here. For example, the CFMEU seeks as part of its stay application
that the decision of the Senior Deputy President to refuse an adjournment be stayed. It is not
apparent how a stay of such a decision could have any practical effect. The refusal or
dismissal of an application does not usually give rise to anything capable of being stayed
pending an appeal.3 It appears that, in substance, the CFMEU seeks a stay of the proceedings
before the Senior Deputy President pending the hearing and determination of the appeal.
Section 606(1) does not provide power to do this. The CFMEU seeks to surmount this
difficulty by applying for terms and conditions attaching to the stay order that the proceedings
before the Senior Deputy President be adjourned. I doubt that this solves the difficulty, for
two reasons: firstly, there must in the first place be a properly founded stay order to which any
term or condition under s.606(1) can attach; and secondly the adjournment requirement
sought by the CFMEU is not in substance a term or condition of a stay order but an entirely
separate order. As for the other procedural rulings made by the Senior Deputy President, it is
likewise difficult to identify any practical effect of a stay upon those rulings, since the hearing
before the Senior Deputy President has now been completed.
[12] I do not need to state a final conclusion about these matters because I consider that the
stay should be refused on balance of convenience grounds. The practical effect sought to be
achieved by the CFMEU by the grant of the stay it has applied for would be, as earlier stated,
to stay the proceedings before the Senior Deputy President and thus prevent her Honour from
2 [2000] AIRC 785, Print S2639 at [5]
3 See Bahonko v Sterjov [2007] FCA 1717 at [50]
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#made
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#conduct
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s605.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s604.html
[2014] FWC 4276
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issuing a decision in the matter. The present position is that it is unlikely that the appeal can
be heard until October, with a decision to be issued some time after that. If the appeal is
unsuccessful, the matter would then revert to the Senior Deputy President to issue a decision.
If the appeal is successful, the application for approval of the Agreement would have to be re-
heard. Either way, the likely result would be that no decision as to whether the Agreement is
to be approved would be issued until late this year or in 2015. There would then be the
possibility of a further appeal. I consider that a delay of this order in the determination of an
application lodged in March is unacceptable if a more convenient course is available.
[13] If no stay is granted, there are two possibilities. The first is that the Senior Deputy
President will issue a decision approving the Agreement. If that occurs, it would be open to
the CFMEU to appeal that decision, and seek a stay of that decision. In that eventuality, the
Commission would be able to hear and determine in a single hearing, with the benefit of the
Senior Deputy President’s reasons for decision, all issues which the CFMEU may wish to
raise concerning the approval of the Agreement and dispose of those efficiently. It was not in
dispute, and is clearly the case, that the CFMEU could in an appeal from the approval
decision challenge any of the Senior Deputy President’s interlocutory rulings which affected
the final result.4 If the CFMEU’s appeal was unsuccessful, the approval of the Agreement
would stand without the need for any further hearing. If the CFMEU was successful, whether
a further hearing was necessary would depend upon the basis upon which it succeeded.
[14] The second possibility is that the Senior Deputy President decides not to approve the
Agreement. In that scenario, this appeal becomes moot (except perhaps if there is an appeal
from the final decision by Collinsville). In neither scenario is any substantial prejudice to the
CFMEU or its interests identifiable.
[15] I consider that the balance of convenience clearly favours the refusal of the stay
application. That makes it unnecessary for me to consider whether the CFMEU’s appeal is
arguable with some reasonable prospects of success. The CFMEU’s application for a stay is
dismissed.
VICE PRESIDENT
Appearances:
B. Docking of counsel with A. Bukarica and E. Thornton solicitor for the Construction,
Forestry, Mining and Energy Union
J. Murdoch QC with K. Anderson solicitor for Collinsville Coal Operations Pty Limited
4 Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478; United Firefighters' Union of Australia v Country Fire Authority
[2013] FWCFB 8165 at [19]
OF THE FAIR WORK MISSION THE
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Hearing details:
2014.
Sydney:
27 June.
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