1
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Mining and Energy Union
v
Collinsville Coal Operations Pty Limited
(C2014/1098)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER JOHNS
MELBOURNE, 5 DECEMBER 2014
Appeal against reserved decision of Senior Deputy President Harrison at Brisbane on
16 June 2014 in matter number AG2014/568 - right to be heard and standing - right to give
notice to be covered by an agreement - permission to appeal granted - appeal upheld on a
limited basis.
Introduction and background
[1] Collinsville Coal Operations Pty Limited (Collinsville) operates the Collinsville coal
mine located in the northern part of the Queensland Bowen Basin. On 13 March 2014
Collinsville applied under s.185 of the Fair Work Act 2009 (the FW Act) for approval of an
enterprise agreement titled the Collinsville Coal Operations Enterprise Agreement 2014
(Agreement). The Agreement was made with 21 employees who are named in the application.
Each employee is described in the application as being a “self-appointed Bargaining
Representative”.
[2] The hearing to consider whether the Agreement should be approved took place before
Senior Deputy President Harrison on 2 May 2014 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 opposing the approval of the Agreement on a
number of grounds, namely: it would be contrary to the objects of the FW Act and to equity,
good conscience and the merits of the matter; the employees had not genuinely agreed to the
Agreement in accordance with s.188 of the FW Act; there was a lack of authenticity and
moral authority in the Agreement; 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 FW Act.
[3] The CFMEU submitted to the Senior Deputy President 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 coal mine for a previous operator and were
now unemployed. During the course of the hearing, her Honour made several preliminary or
[2014] FWCFB 7940
DECISION
AUSTRALIA FairWork Commission
[2014] FWCFB 7940
2
interlocutory rulings affecting the Appellant’s role in the proceedings (Interlocutory
Decisions), including that:
● the CFMEU was not permitted to have access to certain documents;
● Orders for production of documents which the CFMEU sought were not to be
issued;
● certain submissions made by Collinsville from the bar table on disputed or
challenged matters would be accepted;
● the CFMEU was not permitted to adduce evidence or to be heard on certain aspects
of the case it wished to agitate in opposition to the approval of the Agreement,
including whether the employees had genuinely agreed to the agreement in accordance
with s.188, whether there were reasonable grounds for believing that the agreement
had not been genuinely agreed to by the employees 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.1
[4] On 13 May 2014 an application by the CFMEU under s.615A of the FW Act for
Collinsville’s application for approval of the Agreement to be referred to a Full Bench for
hearing and determination, was dismissed.2
[5] At the conclusion of the hearing on 16 June 2014, the Senior Deputy President
reserved her decision on whether to approve the Agreement (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 Interlocutory
Decisions. The CFMEU contended in the notice of appeal that the Senior Deputy President
erred in making the Interlocutory 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
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subject to the overarching obligation of the Commission to ensure a reasonable opportunity
to present a case.
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 CFMEU also sought a stay. The application for a stay was heard by Vice
President Hatcher on 27 June 2014. The Vice President refused the stay application on
balance of convenience grounds.3
[8] On 18 August 2014 the Senior Deputy President published her decision in which she
indicated that she would approve the Agreement subject to receiving undertakings in respect
of three matters (Decision).4 The Decision also set out the Senior Deputy President’s reasons
for some of her earlier Interlocutory Decisions.
[9] On 28 August 2014 the Senior Deputy President approved the Agreement and noted
that the three undertakings proffered by Collinsville are taken to be terms of the Agreement
(Approval Decision).5
[10] On 29 August 2014 the CFMEU filed an amended notice of appeal which took into
account the Senior Deputy President’s Decision and Approval Decision, and as well as adding
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some further particulars to earlier grounds, it added the following grounds (particulars
omitted):
“11. The Senior Deputy President’s reasons in transcript and/or published in [2014] FWC 5628
are inadequate.
12. The Senior Deputy President erred in finding that the employer’s notice of the right to be
represented by a bargaining representative (the notice) complied with the requirements of s
174 of the Act, regulation 2.05 and Schedule 2.1 of the Regulations.
13. The Senior Deputy President erred in the application of section 590 of the FW Act.
14. The Senior Deputy President erred in finding that the employer satisfied the pre-approval
step in ss 180(2) and 188(a)(i) of the FW Act in respect of material incorporated by
reference in the Agreement, namely, the National Employment Standards (cl 3), the Coal
Mining (Long Service Leave Funding) Act 1992 (cl 14.2) and the company’s fatigue
Management policy (cl 14.6).
15. The Senior Deputy President erred in finding that the employer satisfied the pre-approval
step in ss 180(5) and 188(a) of the FW Act, in that the employer failed to establish it took
reasonable steps to explain the terms and effect of the Agreement.
16. The Senior Deputy President erred in finding that s 188 (c) of the FW Act was satisfied.
17. The Senior Deputy President erred in finding that the BOOT was satisfied.”
[11] By the time the appeal came before us for hearing ground 8 was no longer pressed.6
Nature of Appeal
[12] An appeal of a decision is not as of right and permission to appeal must first be
obtained.7 Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that
it is ‘in the public interest to do so’. The task of assessing whether the public interest test is
met is a discretionary one involving a broad value judgment.8 The public interest is not
satisfied simply by the identification of error, or a preference for a different result.9 In
GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified
some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters...”10
[13] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified but examples of considerations which would usually justify the grant of
permission to appeal include that the decision is attended with sufficient doubt to warrant its
reconsideration and that substantial injustice may result if leave is refused.11
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[14] An appeal may only be made by a ‘person who is aggrieved by a decision’. In the
present matter the CFMEU contends that it is a ‘person aggrieved’ by the Senior Deputy
President’s various decisions, within the meaning of that expression in s.604(1). Collinsville
conceded that the CFMEU was ‘a person aggrieved’ by the Senior Deputy President’s
decisions, within the meaning of s. 604(1). 12 We accept that this is so.
Right to be heard and standing
[15] The gravamen of the CFMEU’s complaint on appeal is that it was a bargaining
representative for the Agreement and therefore had standing to be heard in the application for
the approval of the Agreement.13 It says it was denied the opportunity to fully participate in
the proceedings. The CFMEU also says that irrespective of its status as a bargaining
representative it should have been permitted to fully participate in the proceedings before the
Senior Deputy President, whether pursuant to s.590 or otherwise, by reason, inter-alia, of its
long established history of industrial representation in the coal mining industry and at the
Collinsville coal mine, its interest in the protection of wages and conditions of employees
engaged in the industry and its interest in ensuring that the scheme under the Coal Mining
Safety and Health Act 1999 (Qld) and the Coal Mining Safety and Health Regulation 2001
(Qld) is correctly interpreted and applied in Queensland. By being denied the opportunity to
fully participate in the proceedings, the CFMEU submits that it had been denied procedural
fairness. It goes further and submits that the Senior Deputy President did not permit the
CFMEU to develop the arguments it wished to develop to establish that it had a right to be
heard and that the Senior Deputy President had been coloured in her view about the
CFMEU’s standing by reference to its status as a bargaining representative for the
Agreement.14
Bargaining representative
[16] There can be little doubt that a bargaining representative for a proposed agreement
will have standing to be heard in relation to an application to approve the agreement.
Bargaining representatives play a central and important role in the agreement making scheme
established by Part 2-4 of the FW Act. The FW Act places obligations on and grants
privileges to a bargaining representative for a proposed agreement. These include:
imposing an obligation to meet the good-faith bargaining requirements;15
standing to apply for a majority support determination;16
standing to apply for a bargaining order if the good faith bargaining requirements are
not being met by other bargaining representatives;17
standing to apply for a scope order;18
standing to apply for a low-paid authorisation;19
standing to apply for the approval of an enterprise agreement20 and
the right of an employee organisation that was a bargaining representative for the
proposed agreement to give notice that it wants to be covered by the agreement.21
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[17] The Senior Deputy President determined that the CFMEU was not a bargaining
representative for the Agreement and had no right in that capacity to be heard and nor did it
have a right to give notice under section 183 of the FW Act.22
[18] There seems no dispute that the CFMEU was not a bargaining representative of the
person described in the Senior Deputy President’s decision as Employee 1.
[19] Employee 2 is a member of the CFMEU and had been since 31 January 2014. On
15 February 2014 that employee appointed himself as a bargaining representative and gave
notice of that appointment to Collinsville. The CFMEU maintained that the notice of
appointment given by Employee 2 was tainted and that the Senior Deputy President could not
be satisfied that the notice of appointment was not given under coercion, undue influence or
pressure. It relied on the purported representation made by Employee 2 in a text message to
Mr Stephen Smyth, the District President of the Queensland District Branch of the CFMEU.23
The text message exchange provides as follows:
“Hey mate quick question have you signed the bargaining agent form?
Yeah Smythy I did. Not happy about it and feeling like a grub, they had the majority vote to
sign then and there when these forms were mentioned. I am weak cunt and caved under
pressure.”
[20] The CFMEU also relied on an earlier discussion between Mr Smyth and Employee 2,
the substance of which was not permitted to be read into the transcript of proceedings before
the Senior Deputy President.24 According to Mr Smyth, on 31 January 2014 he held a
telephone conversation with Employee 2 during which he told Employee 2 that Employee 2
had a right to nominate the union as a bargaining representative and that Employee 2 said to
him words to the effect that Employee 2 “understood that but felt a lot of pressure because of
the history of the place and being in a probationary period, that he was terrified if he put
forward the union he would be gone”.25
[21] Before the Senior Deputy President, the CFMEU did not propose to call Employee 2
to give evidence and instead sought to rely on an affidavit of Mr Smyth which contained the
material described above.
[22] The Senior Deputy President refused to allow the receipt of Mr Smyth’s evidence. Her
reasons for doing so were as follows:
“In the case of Mr Smyth’s first affidavit, Collinsville described it as largely containing
irrelevant and hearsay material. I agree. The only potential relevance may have been that
attributed to Employee 1 and Employee 2.
Mr Smyth referred to what the two employees had said to him and/or had been contained in
text messages. The CFMEU opposed the release of the names of these employees to
Collinsville and did not intend to call either of them to give evidence. It follows that
Collinsville would be unable to test the truth of any of the comments attributed to the
employees. There was no suggestion that either of the employees was unavailable to give
evidence.
To allow Mr Smyth’s affidavit or extracts of exchanges with Employee 1 and Employee 2
would be unfairly prejudicial to Collinsville. The value of the evidence, such as it is, does not
outweigh that prejudice. I also noted Mr Smyth’s evidence of what he said and what had been
said to him was qualified by “words to the effect...”. I was not persuaded the extracts from Mr
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Smyth’s affidavit which attribute oral comments and mobile phone text messages to the two
employees was of such probative value I should seriously consider it outweighed the prejudice
to Collinsville by it being received. I also note that both employees said they knew they were
entitled to have the CFMEU as their bargaining representative. This may not have accurately
represented the legal position of Employee 1, but I do not need to consider that further here.
The right of Employee 2 to be represented by the CFMEU was also made clear from the terms
of the NoRR. Both employees signed the notice appointing themselves as a bargaining
representative; both voted in favour of the Agreement and signed it. Neither sought to put
anything to me for consideration. There is nothing to suggest either of these employees (or any
other employee) has asked the CFMEU to oppose approval of the Agreement.”26
[23] The CFMEU concedes the evidentiary difficulties with some of this evidence27 but
says nevertheless that the evidence should have been admitted at first instance, that it should
be before us and that we should determine the appropriate weight to be given to the evidence
in the circumstances. The circumstances relied upon are set out in the further submissions of
the CFMEU and are not reproduced here.28
[24] In our view the Senior Deputy President was entitled to conclude as she did for the
reasons she gave and no appellable error is disclosed. The evidence sought to be admitted was
evidence that could not be verified or subjected to cross-examination. It was plainly
prejudicial and its probative value was highly questionable. In the circumstances the evidence
was properly excluded. In any event, even if admitted the evidence at its highest suggests no
more than that the Employee 2 held a perception. There is nothing in that evidence which
suggests that Collinsville by any words or conduct brought about the perception. The
evidence falls a long way short of establishing that the appointment by Employee 2 of himself
as a bargaining representative was tainted or was procured through coercion, undue influence
or pressure brought to bear by Collinsville.
[25] Section 178 provides that an “appointment of a bargaining representative comes into
force on the day specified in the instrument of appointment”. It is not in dispute that the
instrument of appointment was signed by Employee 2 on 15 February 2014. As that
instrument came into force on that day it must also follow that if the CFMEU was a
bargaining representative of Employee 2, that default position pertained until and including 14
February 2014. That is in our view the effect of ss.178 and 176(1)(b). It follows that if the
CFMEU had to that point been a bargaining representative of Employee 2 for the proposed
Agreement, it ceased to be so.29
[26] Putting to one side the question whether the CFMEU had a right to give notice that it
wished to be covered by the Agreement pursuant to s.183 of the FW Act at the time that the
application to approve the Agreement was made, it also follows from the foregoing that the
Senior Deputy President was correct in concluding that in all other respects the CFMEU was
not a bargaining representative for the proposed Agreement and did not have any standing in
that capacity to be heard in relation to the application to approve the Agreement.
[27] Section 183 provides as follows:
“183 Entitlement of an employee organisation to have an enterprise agreement cover it
(1) After an enterprise agreement that is not a greenfields agreement is made, an employee
organisation that was a bargaining representative for the proposed enterprise agreement
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concerned may give the FWC a written notice stating that the organisation wants the
enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer covered by the
enterprise agreement, before the FWC approves the agreement.
Note: The FWC must note in its decision to approve the enterprise agreement that the
agreement covers the employee organisation (see subsection 201(2)).” (Our underlining)
[28] The CFMEU submitted that s.183 operates so that an employee organisation that was
at any time during the bargaining for a proposed agreement a bargaining representative of an
employee, is entitled to give notice that it wants to be covered by the agreement. This is said
to be so even if at the time the notice is given the employee organisation is no longer a
bargaining representative. Consequently as the CFMEU was a bargaining representative for
Employee 2 at least during that period before Employee 2 appointed himself as a bargaining
representative, it was entitled to give notice and the Senior Deputy President erred in
concluding otherwise.30 The ACTU was given permission to make submissions on appeal and
supported the CFMEU’s construction.31
[29] Collinsville submitted that s.183 should be interpreted so that an employee
organisation would only have standing to provide written notification if it was a bargaining
representative for the proposed Agreement at the time the agreement was made. It submitted
that a contrary construction would lead to improbable and irrational results in that an
employee who evinced an intention that an employee organisation not be a bargaining
representative by appointing the employee or someone else as a bargaining representative
would have the wish contradicted by the capacity of the employee organisation to later be
covered by the Agreement. It submitted that once an employee takes the step under section
176 (1)(c) to appoint another person as a bargaining representative of that employee for the
proposed agreement, or revokes the status of an employee organisation as a bargaining
representative in accordance with section 178A(2), the employee organisation ceases to have
any standing or rights in relation to the bargaining process, including the right to give notice
under section 183.32 The Australian Industry Group was also given permission to make
submissions on the appeal and supported Collinsville’s construction.33
[30] Although an employee organisation must have been a bargaining representative for the
proposed agreement that ultimately produced the agreement made, we do not think the narrow
operation of s.183 posited by Collinsville is correct, for the following reasons.
[31] Textual and contextual considerations weigh against the construction. The language of
s.183 suggests that the employee organisation need not be a bargaining representative when
notice is given. This is evident by the use of the verb “was”, which in the present context is
used in the third person singular past tense.
[32] If it was intended to limit the capacity of a bargaining representative to give notice
under s.183 to circumstances in which the bargaining representative held that capacity at the
time an agreement was made or at the time the notice is given, one would expect the provision
to say so. The words “was a bargaining representative for the proposed agreement concerned”
are not qualified in the manner suggested by Collinsville and the construction proposed would
need those words to be read into the provision.
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[33] Further the use of the words “was a bargaining representative for the proposed
enterprise agreement” to describe the capacity in which an employee organisation may give
notice under s.183, is not explained by the fact that an agreement has been made and so the
role of the bargaining representative has ended. The FW Act envisages a continued role for
bargaining representatives after an agreement is made. Bargaining representatives have
standing to apply for an agreement that has been made to be approved by the Commission34
and in considering whether to accept an undertaking the Commission must not accept an
undertaking unless it has sought the views of each person who the Commission knows “is a
bargaining representative for the agreement”.35 The change in the language from “bargaining
representative for the proposed agreement” in the sections of the FW Act dealing with
preapproval stages (ss.173-182) to “bargaining representative for the agreement” in the
sections which follow (when an agreement is made), for example s.185, is explained by the
fact that when an agreement is made it is no longer proposed.
[34] Where the legislature intended that a particular state of affairs be apparent at a
particular time it has expressly said so by use of a temporal connection. For example,
s.172(2)(a) provides that an enterprise agreement may be made with “the employees who are
employed at the time the agreement is made and who will be covered by the agreement”. The
same formulation is used in relation to multi-enterprise agreements.36 Similarly s.181 (1)
provides that an employer that will be covered by a proposed enterprise agreement may
request “the employees employed at the time who will be covered by the agreement to
approve the agreement by voting for it”. There is nothing particularly significant about an
employee organisation having been a bargaining representative for the agreement when an
agreement was made for the purposes of s.183. In our view the language of s.183 recognises
that an employee organisation may have ceased to be a bargaining representative for a
proposed agreement at some point prior to an agreement being made but nevertheless
retaining a right to give notice that it wants to be covered by the agreement.
[35] Coverage by an agreement gives the person covered certain rights beyond the terms
and conditions of the agreement. A person covered by an agreement may apply for the
approval of a variation37 or for the termination38 of the agreement, or for orders in relation to a
contravention of the agreement.39 Section 183 is therefore the vehicle through which
important rights may be conferred on an employee organisation. In our view the narrow
operation of s.183 argued by Collinsville should not be adopted absent express language to
that effect.
[36] Fifthly, there is nothing in the language of s.176 which is suggestive of the
appointment by an employee for whom an employee organisation is a default bargaining
representative for a proposed agreement, of another person as bargaining representative for
that agreement, has the effect that the employee organisation never had the status of
bargaining representative for the proposed agreement. This is true also of s.178A. If that were
the intended operation of those sections then one would expect to find such an intention given
expression in those sections.
[37] When read in context the reference to “was a bargaining representative for the
proposed agreement” in s. 183 does not operate in the narrow manner suggested by
Collinsville. We think it is sufficient for a valid notice to be given under s.183 that an
employee organisation was at some point a bargaining representative of an employee for the
proposed agreement for which approval of the Commission is sought.
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[38] It does not follow however that the capacity of an employee organisation, which is no
longer a bargaining representative, to give notice under s.183, results in the organisation
having standing to make submissions or to otherwise be heard in opposition to an application
approval of an agreement. Section 183 is of limited utility. It serves only to alert the
Commission to the fact that an employee organisation that was a bargaining representative for
the proposed agreement now wishes to be covered by the agreement. The result of a valid
notice under s.183 is that the employee organisation will be noted in the decision approving
the agreement as being covered by the agreement.40
[39] A notice under s.183 may only be given after the agreement is made. Properly
understood, the notice under s.183 is a notice that if the agreement as made is approved by the
Commission the employee organisation giving the notice wants to be covered by it. It strains
both the language and apparent purpose of s.183 to construe the provision as providing a right
to be heard in opposition to the approval of the agreement. Consequently, the CFMEU did not
obtain any right to be heard before the Senior Deputy President by reason of its notice given
under s.183 of the FW Act.
[40] Collinsville asserted before the Senior Deputy President that it initiated bargaining for
the proposed Agreement on 15 February 201441, the same day on which Employee 2
appointed himself as a bargaining representative. It was not in dispute that Employee 2 was
given a notice of employee representational rights by Collinsville on that day. To put this in
context, Collinsville initiated bargaining for the Agreement on 4 February 2014, however it
says it discontinued that process because there was a typographical error in some of their
procedural documents.42 There appear to have been an error in the description of the employer
in notices of employee representational rights which appears to have been issued on 4
February 2014. Collinsville submitted before the Senior Deputy President that bargaining
commenced afresh on 15 February 2014.43 It submitted that in respect of the fresh process,
Collinsville completed the preapproval steps, which included issuing a new notice of
employee representational rights and a new appointment of employee bargaining
representative form to each of the relevant employees. It submitted before the Senior Deputy
President that for the purposes of the application, the Commission must only consider the
process which commenced on 15 February 2014 and that any process which occurred prior to
that date was irrelevant.44 In support of its assertion that bargaining commenced afresh on
15 February 2014 Collinsville relied on the following passage in Peabody Moorvale Pty Ltd v
Construction, Forestry, Mining, and Energy Union:45
The consequence of failing to give a Notice which complies with the content and form
requirements of s.174(1A) is that the Commission cannot approve the enterprise agreement.
We note that this does not prevent the employer from recommencing the bargaining process,
completing the pre-approval steps (including the giving of valid Notices) and making
application to have the resultant enterprise agreement approved by the Commission.46
[41] The decision in Peabody concerned the validity of the notice considered in the context
of an application to approve an agreement. The passage relied upon does not stand for a more
general proposition that once an invalid notice is given then the issuing of a fresh notice of
employee representational rights commences bargaining anew or afresh. Whether the whole
process must begin anew depends on the circumstances and in particular, whether a valid
notice can be given within the time prescribed after an employer agrees to bargain or initiates
bargaining. The issuing of a representative rights notice to employees does not mark out the
time at which bargaining for a proposed agreement commences, although it may do so if
[2014] FWCFB 7940
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given contemporaneously with an agreement to bargain or the initiation of bargaining. Indeed
a notice of employee representational rights may be given within a reasonable period before
an employer has agreed to bargain or has initiated bargaining for an agreement.47
[42] The CFMEU submitted that Collinsville agreed to bargain or initiated bargaining
during the first week that the 21 employees began employment, namely between 28 and
31 January 2014 at which time it is suggested that the employees were each given a notice of
employee representational rights during the on boarding program supervised by Mr Dave
Olive.48 Even if that be correct, for the reasons given in the preceding paragraph, the issuing
of a notice to employees of the representational rights does not mark the beginning of
bargaining. Bargaining for an enterprise agreement, relevantly, begins when the employer
agrees to bargain or initiates bargaining. Collinsville has said that it initiated bargaining on
4 February 2014 and the material relied upon by the CFMEU, provides no basis for
concluding otherwise.
[43] There is nothing to suggest that the proposed Agreement in relation to which
Collinsville initially commenced bargaining was a different agreement in character, form,
substance or scope to the agreement in relation to which bargaining said to have commenced
afresh on 15 February 2014. Indeed paragraphs [1] and [2] of Collinsville’s submissions
before the Senior Deputy President make it clear that the agreement in relation to which
bargaining commenced on 4 February 2014 is the same agreement for which approval was
sought.49 There is also nothing in the material to suggest that Collinsville stopped proposing
the agreement at any time between 4 and 15 February 2014.
[44] According to the statutory declaration that accompanied the application for approval
of the Agreement, the last of the notices of employee representational rights was given to an
employee on 17 February 2014.50 Section 173(3) provides that the employer must give the
notice as soon as practicable, and no later than 14 days, after the notification time for the
agreement. The notification time for the proposed agreement is relevantly the time when the
employer agrees to bargain, or initiates bargaining, for the agreement.51
[45] The last of the notices of employee representational rights was given no later than
14 days after Collinsville initiated bargaining on 4 February 2014. The reissuing of the notice
between 15 and 17 February 2014 did not recommence or start afresh bargaining for the
proposed agreement that had commenced on 4 February 2014. There was no necessity that
bargaining should commence afresh since the subsequent notices given to employees were
given within the statutory timeframe. To the extent that the Senior Deputy President
concluded that bargaining commenced on 15 February 2014 then she was incorrect.
[46] It is not in dispute that Employee 2 was a member of the CFMEU between
4 February 2014 and 14 February 2014. During that period the CFMEU was a bargaining
representative for the proposed agreement by reason of section 176(1)(b). The CFMEU
ceased to be a bargaining representative for the proposed agreement when Employee 2
appointed himself as a bargaining representative.
[47] Given our construction of s.183 of the FW Act, it follows that as the CFMEU was a
bargaining representative for the proposed agreement for the period between 4 February 2014
and 14 February 2014 it was entitled to give notice that it wished to be covered by the
Agreement. The CFMEU gave notice after the Agreement was made and before it was
approved that it wished to be covered by the Agreement.52 To the extent that the Senior
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Deputy President concluded that the CFMEU was not entitled to give notice under
section 183 and did not note in the Approval Decision that the Agreement covers the
CFMEU, her Honour was in error.
Right to be heard other than as bargaining representative
[48] It is accepted that the FW Act does not provide for intervention in proceedings before
the Commission by a non party. Section 590 of the FW Act provides, relevantly that the
Commission may, except as provided by the FW Act, inform itself in relation to any matter
before it in such manner as it considers appropriate, including by inviting, subject to any
terms and conditions determined by the Commission, oral or written submissions.53
[49] The CFMEU says that it was not necessary for it to have been a party to the
proceeding in order to have a right to be heard. It says that it was sufficient that it had some
right, interest or legitimate expectation that might be affected by the proceeding.
Consequently, it says that it should have been afforded procedural fairness by the Senior
Deputy President and that by being prevented from putting its case in opposition to the
approval of the Agreement it was denied procedural fairness.
[50] The CFMEU relied on the following passage of the judgement of Mason J in Kioa v
West:54
“The law has now developed to a point where it may be accepted that there is a common law
duty to act fairly, in the sense of according procedural fairness, in the making of administrative
decisions which affect rights, interests and legitimate expectations, subject only to the clear
manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn
L.C. understood that this was the law when he spoke of the obligation to “fairly listen to both
sides” being “a duty lying upon every one who decides anything” (Board of Education v. Rice
(1911) AC 179, at p 182). But the duty does not attach to every decision of an administrative
character. Many such decisions do not affect the rights, interests and expectations of the
individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision
to impose a general charge for services rendered to ratepayers, each of which indirectly affects
the rights, interests or expectations of citizens generally does not attract this duty to act fairly.
This is because the act or decision which attracts the duty is an act or decision -
“ ... which directly affects the person (or corporation) individually and not simply as a
member of the public or a class of the public. An executive or administrative decision
of the latter kind is truly a ‘policy’ or ‘political’ decision and is not subject to judicial
review.””55
[51] It was submitted that the FW Act does not contain any intention to the contrary such
that the CFMEU should not be heard on an application to approve the Agreement if the
decision to approve the Agreement will affect its rights, interests or legitimate expectations.56
[52] In Annetts v McCann57 the High Court (per Mason CJ, Deane and McHugh JJ) said:
“It can now be taken as settled that, when a statute confers power upon a public official to
destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of
natural justice regulate the exercise of that power unless they are excluded by plain words of
necessary intendment: The Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR
383, at pp 395-396; Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR
106, at pp 109-110; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39;
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[1977] HCA 39; (1977) 137 CLR 487, at pp 496, 500; J. v. Lieschke [1987] HCA 4; (1987)
162 CLR 447, at p 456; Haoucher v. Minister for Immigration and Ethnic Affairs [1990] HCA
22; (1990) 64 ALJR 357, at p 371; [1990] HCA 22; 93 ALR 51, at p 73. In Tanos, Dixon C.J.
and Webb J. said (at p 396) that an intention on the part of the legislature to exclude the rules
of natural justice was not to be assumed nor spelled out from “indirect references, uncertain
inferences or equivocal considerations”. Nor is such an intention to be inferred from the
presence in the statute of rights which are commensurate with some of the rules of natural
justice: Baba v. Parole Board of New South Wales (1986) 5 NSWLR 338, at pp 344-345, 347,
349. In Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, Mason J. said (at p 584) that the
law in relation to administrative decisions: “has now developed to a point where it may be
accepted that there is a common law duty to act fairly, in the sense of according procedural
fairness, in the making of administrative decisions which affect rights, interests and legitimate
expectations, subject only to the clear manifestation of a contrary statutory intention.” In
Haoucher, Deane J said that the law seemed to him “to be moving towards a conceptually
more satisfying position where common law requirements of procedural fairness will, in the
absence of a clear contrary legislative intent, be recognised as applying generally to
governmental executive decision-making”.”
[53] No party quarrelled with the propositions set out in passages extracted from the
decisions above or with the proposition that the Commission is an administrative decision-
making body. The more difficult issue concerns the identification of the right, interest or
legitimate expectation vested in the CFMEU which is said to be affected by a decision to
approve the Agreement. The CFMEU submitted that its rights, interests and legitimate
expectations were affected, or potentially affected by the approval of the Agreement.58
[54] As to the CFMEU’s rights that are said to be affected, the CFMEU submitted, in
summary, that the decision to approve the Agreement will affect its right to represent
employees at the mine and for these employees to be members of the CFMEU. Further, it will
affect its capacity to protect terms and conditions of employment.59 Other rights relied in by
the CFMEU are identified earlier and are not reproduced here.
[55] In our view this argument has no substance. Firstly, the argument presupposes that the
CFMEU has some particular right which will be taken away or interfered with, if the
Agreement is approved. The CFMEU’s entitlement to represent the industrial interests of
employees at the Collinsville coal mine is to be derived from the CFMEU’s rules. The
approval of the Agreement will not interfere with that. Before the Agreement was approved
the terms and conditions of the employees covered by the Agreement were determined, inter
alia, by the Black Coal Mining Industry Award 2010, the applicable modern award. Under the
dispute settlement procedure of the modern award the CFMEU has no particular right of
representation. Representation may be sought by employees in relation to disputes and in
relation to consultation. Under the modern award employees choose their representation. They
may choose the CFMEU. That position is not changed by approval of the Agreement.
Employees may choose to be represented by the CFMEU in disputes under the Agreement
and in consultation matters. In any event such rights are vested in the employees not in the
CFMEU. The Modern Award is not a respondency award made in settlement of an interstate
industrial dispute involving the CFMEU. The statutory basis and constitutional underpinning
of modern awards are significantly different to awards made under predecessor legislation in
settlement of disputes.
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[56] Secondly, the Agreement does not affect the rights of an employee covered by it to
choose whether he or she wishes to join, continue to be or cease to be, a member of the
CFMEU.
[57] Thirdly, the approval of the Agreement does not affect the right of the CFMEU to be
involved in bargaining for any successor or replacement agreement, nor does it affect the right
of the CFMEU to represent employees more broadly engaged in the coal mining industry or
to advocate for improvements to the terms and conditions under which those employees are
employed.
[58] Fourthly, the approval of the Agreement does not affect the capacity of an officer of
the CFMEU who is a permit holder under the FW Act to investigate suspected contraventions
of the FW Act or of the terms of the Agreement.60 Nor does it affect the capacity of the permit
holder to enter Collinsville’s premises for the purposes of holding discussions with
employees.61
[59] Fifthly, to the extent that it was suggested that the CFMEU’s capacity to represent
employees and protect their interests under the Coal Mining Safety and Health Act 1999 (Qld)
and the Coal Mining Safety and Health Regulation 2001 (Qld) is undermined or taken away
by the approval of the Agreement, that proposition is rejected. As s.29 of the FW Act makes
clear, an enterprise agreement applies subject to, and does not prevail over, a State law
dealing with occupational health and safety matters. Such rights or interests as the CFMEU
may have under those laws are clearly unaffected by the approval of the Agreement.
[60] Sixthly, the CFMEU’s reliance on rights that it had under agreements which
previously applied to work at the Collinsville coal mine62 is misconceived in that whatever
else might be said about the content of those agreements, they did not cover the employees
who are now covered by the Agreement when the agreement was made and they did not cover
Collinsville. Consequently the CFMEU had no particular right under those agreements vis-a-
vis the employees or Collinsville, and so no right of the CFMEU is affected by the approval
of the Agreement.
[61] The CFMEU also relied upon the matters set out in paragraphs [29] – [40] of the
affidavit of Mr Smyth affirmed on 25 June 201463 in support of its proposition that its right,
interest or legitimate expectation is affected by the approval of the Agreement. Essentially Mr
Smyth’s affidavit speaks to the history of the CFMEU in its representation and membership at
the Collinsville coal mine, the attempts to de-unionise at the mine, the prospect of the strategy
adopted by Collinsville and its related entities being adopted by other operators in the black
coal industry in Queensland and New South Wales and the CFMEU’s desire to protect its
interest under relevant occupational health and safety legislation (discussed earlier above)
which are adversely impacted by the incorporation into the Agreement of Collinsville’s
fatigue management policy.64
[62] Doubtless, the CFMEU has an interest in all of these matters or even some expectation
as to these matters but that will not be enough to attract the right to be heard. As McHugh and
Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex
parte Lam:65
“Used in some strict sense, or as an antonym to “illegitimate”, the term “legitimate” is apt to
suggest entitlement in law to some final outcome. However, the term has been used in the
[2014] FWCFB 7940
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authorities not in that sense, but with a lesser meaning of “reasonable”66. Here too care is
needed. Not every expectation or hope which might be entertained by a “reasonable man” will
necessarily attract the doctrine. This qualification was noted by Lord Diplock in Council of
Civil Service Unions v Minister for the Civil Service67.
The term “expectation” also has its uncertainties. It is used in various senses in the law. A
beneficiary may be said, as an aspect of the trust institution, to be entitled to expect that the
trustee will observe the terms of the trust and otherwise act in the interests of the beneficiary.
The reasonable expectation of a purchaser of the benefit from the increase in value of land the
subject of an uncompleted instalment contract may support the intervention of equity to
relieve against forfeiture of the contract68. These expectations are founded in legal, particularly
equitable, precepts and principles rather than in individual aspirations shown by the evidence
in any case. Expectations of reliance also inform the importance of a duty of care in utterance
by way of information or advice69. In the field of estoppel, notions of expectation are often
linked to reliance and detriment70. Here the emphasis is upon the state of mind of the
individual.
In the field of public law, to speak of an expectation placed in a decision-maker invites the
questions (i) who entertains the expectation; (ii) how does it come to arise; and (iii) to what
outcome is it addressed? . . .”71
[63] Later their Honours said:
“The role of the doctrine of legitimate expectation
In his dissenting judgment in Teoh, McHugh J questioned whether, given the development in
Australian case law of the requirements of procedural fairness, the doctrine of legitimate
expectations was left with any distinct role. His Honour said72:
“I think that the rational development of this branch of the law requires acceptance of
the view that the rules of procedural fairness are presumptively applicable to
administrative and similar decisions made by public tribunals and officials. In the
absence of a clear contrary legislative intention, those rules require a decision-maker
‘to bring to a person’s attention the critical issue or factor on which the administrative
decision is likely to turn so that he may have an opportunity of dealing with it’73. If
that approach is adopted, there is no need for any doctrine of legitimate expectations.
The question becomes, what does fairness require in all the circumstances of the
case?”
Earlier, in Quin, Brennan J had said74:
“So long as the notion of legitimate expectation is seen merely as indicating ‘the
factors and kinds of factors which are relevant to any consideration of what are the
things which must be done or afforded’ to accord procedural fairness to an applicant
for the exercise of an administrative power75, the notion can, with one important
proviso, be useful. If, but only if, the power is so created that the according of natural
justice conditions its exercise, the notion of legitimate expectation may usefully focus
attention on the content of natural justice in a particular case; that is, on what must be
done to give procedural fairness to a person whose interests might be affected by an
exercise of the power. But if the according of natural justice does not condition the
exercise of the power, the notion of legitimate expectation can have no role to play. If
it were otherwise, the notion would become a stalking horse for excesses of judicial
power.”
[2014] FWCFB 7940
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These statements by McHugh J and Brennan J should be accepted as representing the law in
Australia. The decision in Teoh does not require any contrary or other understanding of the
law.”76
[64] We are not persuaded that having that interest or expectation articulated by the
CFMEU by reference to the Smyth affidavit gave rise to a right to be heard in the application
for the approval of the Agreement.
[65] In our view the right, interest or legitimate expectation that is said to be affected by
application of the kind before the Senior Deputy President must be identified and understood
against the framework of enterprise bargaining and agreement making established by the FW
Act. It is not enough, without more, to point to the status of the CFMEU as an employee
organisation with a history of representation at the workplace or in the industry. Moreover,
this is not a case where some of the members of the CFMEU voted against the approval of the
Agreement or did not vote at all. All of the employees covered by the Agreement voted, and
all of those employees (including Employee 2) voted in favour of approving the Agreement.
[66] The statutory framework includes that enterprise agreements are made principally
between an employer and employees; that bargaining representatives have a role in relation to
enterprise bargaining either by default or by appointment; that default bargaining
representatives can be displaced by appointment or by revocation; that enterprise agreements
operate primarily at the single enterprise level and do not create rights of general application
across an industry or have common rule application; that rights of an employee organisation
to be involved in the bargaining process under the FW Act is not separate from its standing as
a bargaining representative; and that its capacity to be involved in protected industrial action
by seeking a protected action ballot authorisation cannot be separated from its standing as a
bargaining representative.
[67] The legislative history of the agreement making and approval provisions in the FW
Act is a relevant contextual consideration in this regard. ‘Non-union’ agreements, known as
enterprise flexibility agreements (EFAs), first became a feature of the Commonwealth system
with the enactment of Division 3 of Part VB of the Industrial Relations Act 1988 (Cth) (the IR
Act). The IR Act provided ‘eligible unions’ with an opportunity to take part in negotiations
for an EFA by effectively placing an obligation on an employer to notify eligible unions and
to provide them with a reasonable opportunity to take part in negotiations. An eligible union
in relation to an EFA was defined in s.170LB to mean an organisation of employees:
(a) that is a party to an award that binds the employer in respect of work
performed in that enterprise; and
(b) of which one or more employees whom the employer employs to perform
work in the enterprise are members.
[68] An eligible union was entitled to be heard on an application to the Commission to
approve the implementation of an EFA.77 Further, s.170NB(1) of the IR Act provided that an
organisation of employees was entitled to be heard on such an application if it was bound by
an award that bound the employer party to the EFA in respect of work performed in the
relevant enterprise. There is no such express right to be heard in the FW Act and the role of
organisations of employees in the bargaining and agreement approval provisions under the
FW Act is very different to that provided for in the IR Act.
[2014] FWCFB 7940
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[69] That an employee organisation has an ongoing relationship with its members who
might become covered by an agreement and has a role under its rules in representing those
members is not relevant in the context of a right to be heard in relation to the approval of an
agreement.78 The FW Act does not confer a right on employee organisations (other than in the
case of the greenfields agreement) to be covered by an agreement if it was not a bargaining
representative. Likewise, the FW Act does not confer upon an employee organisation a role in
enterprise bargaining under the FW Act outside of its status as a bargaining representative.
The mere fact that an employee organisation has an ongoing relationship with its members
and is entitled to represent their industrial interests is not a sufficient basis to conclude that the
approval of an enterprise agreement will adversely affect a right, interest or legitimate
expectation of that employee organisation.
[70] In similar vein, that an employee organisation has amongst its interests, objects or
expectations, that it will obtain and maintain reasonable employment conditions for its
members, is in the context of the bargaining framework established by the FW Act, an
insufficient basis for there to arise a right, interest or legitimate expectation and thereby a
conferral on the employee organisation of a right to be heard in relation to an application to
approve an enterprise agreement.
[71] Account should also be taken of the fact that enterprise agreements may confer or deal
with the rights and obligations of an employee organisation vis-a-vis the employees and that a
new agreement might displace or alter those rights and obligations, but that is not the case
here.
[72] Whether an employee organisation which is not a bargaining representative has a right
to be heard in relation to an application for the approval of an agreement will depend on the
circumstances in each case. In this case, when the rights, interests or expectations asserted by
the CFMEU are understood in the legislative context, it is clear that the CFMEU has not
established any right, interest or legitimate expectation that would be adversely affected by
the decision to approve the Agreement which would give it a right to be heard.
[73] We are therefore not persuaded that the Senior Deputy President erred in not giving
the CFMEU the opportunity to be heard or to lead evidence in relation to its opposition to the
approval of the Agreement.
[74] We should also observe that the CFMEU’s reliance on its desire to advance arguments
based on the decisions in the Construction, Forestry, Mining and Energy Union v Australian
Industrial Relations Commission (Gordonstone)79 and Grocon Pty Ltd Enterprise Agreement
(Victoria) (Grocon)80 does not advance the CFMEU’s right to be heard argument. Those cases
were decided under a different statutory regime and importantly one in which there was the
capacity to seek leave to intervene in proceedings.81
[75] We would make the observation however, that the Commission may choose, in a
particular case, to hear from an employee organisation or any other person about the approval
of an agreement even though the organisation or person may not otherwise have a right to be
heard. The Commission has a broad power to inform itself in relation to any matter in such
manner as it considers appropriate, including by inviting oral or written submissions from a
person of organisation.82 In this case the Senior Deputy President chose to exercise that power
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by permitting the CFMEU to be heard on the question of whether the Agreement passed the
BOOT.
[76] Finally as to the CFMEU’s submissions that the Senior Deputy President did not give
it an opportunity to develop the arguments it wished to develop on the question of a right to
be heard, given our conclusions above, we have found it unnecessary to reach a concluded
view on this issue. We accept that the CFMEU (as with any person seeking to be heard) is
entitled to be given a proper opportunity to develop its argument on the question whether it
should be heard. The CFMEU has had full opportunity to develop its argument before us. It
did so and its argument did not persuade us that it should have been heard. Therefore, even if
its submission is correct, any failure at first instance has now been rectified.
[77] Returning then to the grounds of appeal.
Grounds of Appeal
[78] Given our conclusions above it is unnecessary that we deal with ground 13.
[79] Ground 8 was not pressed.
[80] Given our conclusion that the CFMEU was a bargaining representative from
4 February to 14 March 2014 of Employee 2, it is unnecessary to deal further with ground 6.
[81] As to ground 7 the Senior Deputy President correctly concluded that the CFMEU was
not a bargaining representative when it sought to be heard and had no standing in that
capacity to be heard. The CFMEU’s previous status as bargaining representative did not
affect the correctness of that conclusion. As we have concluded that the CFMEU did not have
any other basis for asserting that it had a right to be heard it is unnecessary to deal further with
this ground.
[82] It follows that grounds 2, 3, 4, 5, 9 and 10 fail to establish an appellable error or are
not necessary to decide as they deal with or are contingent upon standing or right to be heard.
[83] Ground 1 is misconceived. The decision in Peabody does not establish a rule of
general application that an employee organisation has a right to be heard, to lead evidence or
to cross-examine witnesses on an application to approve an enterprise agreement. No issues
about the CFMEU’s participation were taken by any party in Peabody and other peak
organisations were invited to make submissions as to the question that was to be determined
about the validity of the notice of employee representational right.
[84] Ground 11 concerns the adequacy of the reasons given by the Senior Deputy President
for the various decisions the subject of this appeal. The principles that govern the duty to give
adequate reasons for a decision are usefully summarised in Barach v University of New South
Wales.83 In Barach a Full Bench of Fair Work Australia said:
“The duty to give adequate reasons for decision has been considered on many occasions.
Important public policy considerations underlie this duty. In particular, the reasons for decision
must be sufficient to allow the parties to exercise such rights of appeal as may be available and
to enable an appeal bench to determine whether or not error has occurred in relation to a
decision. Consequently the reasons given must articulate the essential grounds for reaching the
decision and must address material questions of fact and law in a manner which discloses the
[2014] FWCFB 7940
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steps which lead to a particular result. However the reasons for decision of a tribunal member
need not be lengthy or elaborate and need not spell out every detail in the reasoning process or
deal with every matter of fact or law which was raised in the proceedings.”84 (Footnotes
omitted)
[85] In our view there is little foundation in the CFMEU’s criticism. Although the CFMEU
does not particularise its criticism and its written submissions on the point are confined to
three lines,85 on a review of the Senior Deputy President’s reasons recorded in transcript and
the Decision it seems to us clear that the Senior Deputy President engaged with the arguments
advanced by the CFMEU, made factual findings as were necessary, addressed material
questions of fact and law and adequately explained her conclusions. It was not necessary for
the Senior Deputy President to spell out every detail in her reasoning process or to deal with
every single matter which was raised during the proceeding. We are satisfied that the Senior
Deputy President gave adequate reasons for the decisions the subject of this appeal.
[86] As to ground 12, there is nothing in the material relied upon by the CFMEU, which
would suggest that the notice of employee representational rights given to employees between
15 and 17 February 2014 was not validly given. For the reasons given earlier, although we
agree that the Senior Deputy President was in error in concluding that bargaining for the
Agreement began on 15 February 2014, this is an insufficient basis for concluding that the
notices given were not valid. We are satisfied that the notices were valid notices and
consequently ground 12 fails.
[87] Ground 14, so far as it concerns the National Employment Standards (NES) and the
Coal Mining (Long Service Leave Funding) Act 1992, proceeds upon the false premise that
the terms of those instruments were incorporated by reference into the Agreement.
[88] Clause 3 of the Agreement provides that the Agreement does not exclude the NES or
any provision of the NES. It also provides that the provisions of the NES shall have effect in
accordance with the FW Act. It does not in terms or by implication incorporate the NES by
reference. It merely restates the effect of s.55(1) of the FW Act. The Senior Deputy President
was patently correct in concluding that the terms of the NES were not incorporated by
reference into the Agreement.
[89] Clause 14.2 of the Agreement provides:
“Any other entitlements will be subject to approval by the industry fund. This clause does not
exclude any entitlements provided for in the Coal Mining Industry (Long Service Leave
Funding) Act 1992.”86
[90] Clause 14.2 does not in terms or by implication incorporate the State legislation
therein specified. The clause merely directs attention to the fact that such entitlements as may
exist under that legislation are not excluded by operation of the Agreement. The Senior
Deputy President was correct in concluding the terms of the State legislation were not
incorporated by reference into the Agreement.
[91] It is clear that Collinsville’s Fatigue Management Policy is incorporated by reference
into the Agreement. It is also clear that the Senior Deputy President had regard to the
evidence given by Mr Olive87 that employees were made aware of the content and existence
of the Fatigue Management Policy during the on boarding process in January 2014 and that
the employees were alerted to the fact that the policy as well as other policies were accessible
[2014] FWCFB 7940
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using the site based touch screens.88 The employees therefore had access during the access
period to the incorporated policy. There is no requirement that incorporated material be
explained to employees during the access period. An explanation of the incorporated material
can be given before the access period has begun. Senior Deputy President was entitled to rely
upon the evidence of Mr Olive in this regard. The Senior Deputy President was entitled on the
material to be satisfied that the requirements as to the material incorporated had been met and
no appellable error is disclosed.
[92] It follows that ground 14 fails to establish an appellable error.
[93] As to ground 15, the Senior Deputy President was entitled to rely on the material in
the statutory declaration filed in support of the application for approval of the Agreement.
That declaration set out the steps taken by Collinsville to explain to the employees the terms
and effect of the agreement. For the reasons given earlier the incorporation of Collinsville’s
Fatigue Management Policy does not displace the requirements of State occupational health &
safety laws or the requirements of such laws relating to the content and formulation of a
fatigue management policy. For that reason it was unnecessary for Collinsville to explain, as
suggested by the CFMEU, the impact of the Agreement vis-a-vis the requirements of the
legislation. The Senior Deputy President was entitled to be satisfied that the steps taken by
Collinsville as set out in the declaration and supplemented by Mr Olive’s affidavit complied
with the statutory requirement to explain the terms and effect of the Agreement to the
employees.
[94] Ground 16 relies for its foundation on the fact that the CFMEU wished to lead
evidence which would have established that there were reasonable grounds for believing that
the Agreement has not been genuinely agreed to by the employees.89 In this regard the
CFMEU sought to rely on material principally in the affidavits of Mr Smyth from which it
intended to construct what it described as a Gordonstone-style argument, which it submitted
was accepted in Grocon. In effect the Appellent wished to demonstrate that Collinsville had
no moral authority to make the Agreement and that consequently there were reasonable
grounds for believing that the employees did not genuinely agree to the Agreement.90
[95] Having reviewed the material on which the CFMEU sought to rely we are not
persuaded that the material establishes any reasonable grounds for believing that the
Agreement has not been genuinely agreed to by the employees. Much of the material concerns
allegations about particular motives of Collinsville in pursuing or making the Agreement.
None of the motives or objectives identified is illegitimate, provided that it is not brought
about by unlawful means. The motivation of Collinsville is not, in the context of the current
statutory framework, a matter which speaks to whether the employees genuinely agreed to the
Agreement.
[96] It must also be borne in mind that ultimately the decision in Gordonstone turned on
the fact that the company making the Agreement was not at the time that it made the
Agreement and sought certification of it, operating or managing the mine at which the
Agreement was said to operate. Consequently, there was not an agreement of a kind that could
be certified under the then Workplace Relations Act 1996 (WR Act). The decision in Grocon
turned on the fact that the two employees who were to be covered by the agreement were not
given important information about the scope and effect of the agreement, including that they
would be the only employees who would be covered by the Agreement. Consequently, their
consent was not informed and therefore not genuine within the meaning of the then WR Act.
[2014] FWCFB 7940
21
None of the material relied upon by the CFMEU establishes any such similarly relevant
circumstance.
[97] Section 188(c) is not concerned with an employer’s motive for making an agreement.
It is concerned with the genuineness of the agreement by the employees. None of the material
raises questions about the genuineness of agreement by employees. That an earlier notice
issued by Collinsville did not mention that a union could be a bargaining representative of
employees (as alleged by the CFMEU) does not take the matter further. Any confusion that
might have been created by the earlier notice was corrected by the valid notices of employee
representational rights issued to employees between 15 and 17 February 2014. Similarly (for
reasons given earlier) the incorporation of Collinsville’s Fatigue Management Policy by
reference into the agreement, does not have the effect contended for by the CFMEU and so
does not affect the question whether the employees genuinely agreed to the Agreement.
[98] Ground 17 alleges in error in the Senior Deputy President’s finding the Agreement
passed the better off overall test (BOOT). We have reviewed the analysis contained in exhibit
SS21 to the affidavit of Mr Smyth91 and observe firstly, the analysis, to the extent that it
compares the terms of the Agreement to instruments other than the applicable modern award,
is flawed. The Senior Deputy President’s task in considering the BOOT involved a
comparison between the Agreement and the modern award. We have also reviewed the
modern award and the Agreement, as well as the BOOT analysis prepared by Collinsville,92
and we are satisfied that the Senior Deputy President was correct in her conclusion that each
class of employee covered by the Agreement was better off overall than under the modern
award. Ground 17 does not disclose an appellable error.
Permission to appeal
[99] But for the error that we have identified earlier above in the Approval Decision not
noting that the CFMEU is covered by the Agreement, we would not be persuaded on public
interest grounds or otherwise to grant permission to appeal. However the right of an employee
organisation that was bargaining representative for a proposed enterprise agreement to be
covered by that enterprise agreement if notice is given under s.183 is a substantive right and
the error warrants the granting of permission to appeal and we do so.
Disposition of Appeal
[100] The appeal is upheld to the extent only of the error identified. The appeal is otherwise
dismissed.
Rehearing
[101] For the reasons given earlier we are satisfied that the CFMEU was a bargaining
representative of Employee 2 for the proposed Agreement for the period between
4 February 2014 and 14 February 2014. The CFMEU was entitled to give notice under s.183
of the FW Act that it wanted to be covered by the Agreement. It gave the notice after the
Agreement was made and before it was approved by the Commission. Consequently pursuant
to s.607(3) of the FW Act we propose (subject to what is said below) to vary the Senior
Deputy President’s decision in [2014] FWCA 5705 by including a note in the decision that
the Agreement covers the CFMEU as required by s.201(3) of the FW Act.
[2014] FWCFB 7940
22
[102] The notice under s.183 given by the CFMEU is contained in a Form F18 statutory
declaration declared by Stephen Smyth on 31 March 2014.93 As the introductory words in
Form F18 make clear, the statutory declaration is “in support of an application . . . for
approval of an enterprise agreement . . .”.94 It is in that context that question 6 of the
declaration asks whether “the Union gives notice pursuant to section 183 . . .”.95 In answer to
that question the CFMEU has indicated “Yes”96. Given that its clearly stated purpose was to
oppose the approval of the Agreement97, we propose to give the CFMEU 7 days from the date
of this decision to give notice confirming that Mr Smyth’s answer to question 6 of the
statutory declaration dated 31 March 2014 correctly represents the CFMEU’s position that it
wants to be covered the Agreement. Such notice should be delivered to the Chambers of
Deputy President Gostencnik with a copy served on the Appellant.
PRESIDENT
Appearances:
B. Docking of Counsel for the Appellant
J. Murdoch QC for the Respondent
J. Dolan for the Australian Council of Trade Unions
D. Miller for Australian Industry Group
Hearing details:
Brisbane.
2014.
2 October
Further written submissions:
9 October 2014 submissions by the Appellant, Respondent, ACTU, AIG
14 October 2014 submission by the Appellant, Respondent, ACTU, AIG
Printed by authority of the Commonwealth Government Printer
Price code G, PR557528
1 See transcript at AB146 – AB197
2 [2014] FWC 3129
3 [2014] FWC 4276
4 [2014] FWC 5628
5 [2014] FWCA 5705
6 Appellant's Outline of Submissions at [11(b)]
7 Section 604(1)
8 O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied v Lawler [2011] FCAFC 54 at [44]-[46]
[2014] FWCFB 7940
23
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services
Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied
Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB
8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663
10 [2010] FWAFB 5343 at [27]
11 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory
Memorandum to what is now s.604, at para 2328.
12 Transcript PN 675 – PN 678
13 We note that in CEPU and AMWU v Main People Pty Ltd [2014] FWCFB 8429 a Full Bench of the Commission
determined that a right to represent employees under the terms of the agreement and the likelihood that members of the
appellant unions would in the future be employed under the agreement resulted in the appellants having standing to
institute the appeal as those factors gave the appellants an interest beyond that of an ordinary member of the public. We
would observe that in the context of the statutory scheme established for agreement making and approval, the question
whether a person should be heard during an application to approve an agreement is a different question whether a person
is aggrieved by a decision for the purposes of bringing an appeal. For the reasons set out at [70] of our decision, we do
not regard the possibility or even likelihood that members of an employee organisation might in the future be employed
under the agreement as grounding a right to be heard. Nor does that fact that employees covered by an agreement might
choose to be represented by the employee organisation under particular terms of the agreement give rise to a right to be
heard. The right of representation under the terms of an agreement resides with the employee, not the organisation or
person selected by the employee to provide representation.
14 Transcript PN68 – PN71
15 Section 228
16 Section 236
17 Section 229
18 Section 238
19 Section 242
20 Section 185
21 Section 183
22 [2014] FWC 5628 at [43] – [47]
23 AB75 at [70]; AB172 at PN384;
24 AB156 at PN238 – PN 241
25 AB74 at [69]
26 [2014] FWC 5628 at [50]-[52]
27 Appellant's Outline of Submissions at [21]
28 CFMEU’s Further Submission 9 October 2014 at [14]-[19]
29 Section 176(1)(b), (c) and (4)
30 See CFMEU’s further submissions dated 9 October 2014
31 See Further Submissions of Australian Council of Trade Unions dated 9 October 2014
32 See Respondent’s Outline of Submissions dated 9 October 2014
33 See Further Submissions of the Australian Industry Group dated 9 October 2014
34 See section 185(1)
35 The section 190(4)
36 See section 172(3)(a)
37 Section 210
38 Sections 222 and 225
39 Sections 50 and 539(2) item 4
40 See section 201(2)
41 AB258 at [3] and AB162 at PN 296
42 AB258 at [2]
[2014] FWCFB 7940
24
43 Ibid at [3]
44 Ibid
45 [2014] FWCFB 2042
46 Ibid at [45]
47 See section 173(4)
48 The ground of appeal 12 and the particulars thereto at AB30 and the affidavit of Dave Olive at AB285
49 AB258
50 AB228
51 Section 173(2)
52 AB393
53 Section 590(1) and (2)(b)
54 (1985) 159 CLR 550
55 Ibid at 584
56 Transcript PN115
57 (1990) 170 CLR 596
58 Transcript PN132 – PN133
59 Transcript PN134 – PN139
60 See section 481
61 See section 484
62 Transcript PN155 – PN157
63 Vol 2 AB1 at 4 – 6
64 Ibid
65 (2003) 214 CLR 1
66 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 563, 583
67 [1985] AC 374 at 408-409
68 Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489 at 529
69 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at 16-17 [47]
70 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at 120-125 [34]- [48]. See also Finn and Smith, "The Citizen,
the Government and 'Reasonable Expectations'", (1992) 66 Australian Law Journal 139 at 140-144.
71 Ibid at 20 [61]-[63]
72 [1995] HCA 20; (1995) 183 CLR 273 at 311-312. See also Allars, "One Small Step for Legal Doctrine, One Giant Leap
Towards Integrity in Government", [1995] SydLawRw 16; (1995) 17 Sydney Law Review 204 at 222-224.
73 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587.
74 [1990] HCA 21; (1990) 170 CLR 1 at 39.
75 Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 at 285 per Mahoney JA
76 Ibid at 27 – 28 [81] – [83]
77 Enterprise Flexibility Agreements Test Case May 1995 (1995) 59 IR 430 at 451
78 See CFMEU v Hamberger and Anor (2011) 195 FCR 74 in which Katzmann J discusses the meaning of “will be covered”
in s.172 of the Act and concludes at [69]-[79] that persons not yet employed but who might in the future be covered by an
agreement are not within the class of persons “who will be covered”; See also Mermaid Marine Vessel Operations Pty Ltd v
MUA [2014] FWCFB 1317 at [73]-[74] and CBI Contractors Pty Ltd v CFMEU [2011] FWAFB 7642 at [22]-[23]
79 (1999) 93 FCR 317
80 (2003) 127 IR 13
81 See for example section 43 Workplace Relations Act 1996
82 Section 590
83 (2010) 194 IR 259
84 Ibid at 262 – 263
85 See appellant's outline of submissions [11 (c)], [24] and [33]
[2014] FWCFB 7940
25
86 AB112
87 [2014] FWC 5628 at [94]
88 AB285 – AB287
89 See section 188(c)
90 Transcript PN398 – PN463
91 Vol 3 AB527
92 AB288 – AB302
93 AB391
94 Ibid
95 AB393
96 Ibid
97 AB392
