[2014] FWCFB 1317
The attached document replaces the document previously issued with the above code on 7
March 2014.
The MNC reference in the summary on page 1 is corrected and a typographical error in
paragraph [45] and [60] is corrected.
Abbygayle Lang
Associate to Deputy President Gostencnik
Dated 20 February 2015
1
Fair Work Act 2009
s.604—Appeal of decision
Mermaid Marine Vessel Operations Pty Ltd
v
Maritime Union of Australia, The
(C2014/2788)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT KOVACIC
COMMISSIONER CLOGHAN
MELBOURNE, 7 MARCH 2014
Appeal against decision [[2014] FWC 8] of Commissioner Williams at Perth on 3 January
2014 in matter number B2013/1582.
Introduction
[1] The Maritime Union of Australia (Respondent) in its capacity as a bargaining
representative of employees who will be covered by a proposed enterprise agreement, applied
to the Fair Work Commission (Commission) on 18 December 2013 for an order under s.437
of the Fair Work Act 2009 (Act) requiring a protected action ballot to be conducted to
determine whether employees of Mermaid Marine Vessel Operations Pty Ltd (Appellant)
wish to engage in particular protected industrial action for the agreement1(PABO
Application). Commissioner Williams heard the PABO Application on 23 December 20132.
The Commissioner granted the PABO Application and delivered his reasons for decision on 3
January 2014 (Decision)3. An order giving effect to the Decision was also issued on 3 January
2014 (Order)4.
[2] On 24 January 2014 the Appellant lodged a notice of appeal against the Decision and
Order. At the hearing of the appeal, pursuant to s. 590 of the Act we granted permission to the
Australian Mines and Metals Association (AMMA) to appear and to make submissions.
[3] We have decided to grant permission to appeal. We have also decided to uphold the
appeal in part and to dismiss the remainder of the appeal. In consequence we will quash the
Order. We have decided to remit the PABO Application to Commissioner Cloghan to
determine the question of whether the Respondent has been, and is genuinely trying to reach
agreement with the Appellant and to determine what order, if any, should be made. These are
our reasons for so doing.
1 ABl-5
2 See transcript at AB17-49
3 AB9-16; Maritime Union of Australia, The v Mermaid Marine Vessel Operations Pty Ltd [2014] FWC 8 (3 January
2014)
4 AB6-8; PR546210
[2014] FWCFB 1317
DECISION
AUSTRALIA FairWork Commission
[2014] FWCFB 1317
2
Factual context
[4] An important aspect of the factual context that arises in this appeal concerns the
overlapping coverage of some of the Appellant’s employees by two enterprise agreements.
The Mermaid Marine Vessel Operations Pty Ltd Integrated Ratings, Cooks, Caterers and
Seafarers (Offshore Oil and Gas) Enterprise Agreement 2010 (General Agreement) is
expressed to cover employees of the Appellant engaged in the offshore oil and gas industry,
whose employment classification is contained in the agreement and who is a member of, or
eligible to be a member of, the Respondent5. The Mermaid Marine Vessel Operations Pty Ltd
Integrated Ratings, Cooks, Caterers and Seafarers Gorgon Enterprise Agreement 2011
(Gorgon Agreement) is expressed to cover employees of the Appellant whose employment
classification is contained within the General Agreement and who is employed on board a
vessel performing offshore work under the Gorgon Contract as determined by the Appellant6.
[5] The Gorgon Agreement incorporates all of the terms of the General Agreement, except
the nominal expiry date and clause 317. Clause 31 is not relevant to any question raised in the
appeal8.
[6] The nominal expiry date of the General Agreement of 31 July 2013 has passed9,
while the nominal expiry date of the Gorgon Agreement of 15 January 2016 has not10.
[7] On 16 November 2012, the Respondent sought to commence bargaining with the
Appellant for a new Offshore Oil and Gas Enterprise Agreement11. The Respondent agreed to
bargain for a new Offshore Oil and Gas Enterprise Agreement to replace the General
Agreement in around early December 201212.
[8] Having agreed to bargain, on 24 December 2012 the Respondent issued a notice of
employee representational rights (NERR), pursuant to s.173 of the Act to 213 of its
employees engaged by it in the offshore oil and gas industry who, at that time, worked in the
classifications covered by the General Agreement13. The NERR described the proposed
agreement as the “Mermaid Marine Integrated Ratings, Cooks, Caterers and Seafarers
(Offshore Oil and Gas) Enterprise Agreement 2013”14. That proposed agreement was
expressed to cover employees whose employment classifications are contained in the General
Agreement15. For convenience, we refer to that proposed agreement as the “proposed
Offshore Oil and Gas Enterprise Agreement”. The employees to whom a NERR was issued
included employees who, at that time, were covered by both the General Agreement and the
Gorgon Agreement and (by reason of work or assignment allocation) to whom either the
5AB57-118; General Agreement, Clause 4 – Scope and Application
6 AB119-172; Gorgon Agreement, Clause 3.1 – Scope. Note that ‘Gorgon Contract’ is defined in Clause 2 – Definitions of
the Gorgon Agreement
7 AB123.4; Gorgon Agreement, Clause 4.1
8 Clause 31 of the 2010 Agreement deals with a construction project allowance bonus; See AB78.3
9 AB57.7
10 AB121.3
11 AB52.9 and AB177
12 AB53.1
13 AB53.5 and AB188-189
14 AB189
15 Ibid
[2014] FWCFB 1317
3
General Agreement or the Gorgon Agreement applied at any given point in time16. The scope
of the proposed Offshore Oil and Gas Enterprise Agreement set out in the NERR clearly
would cover both of these classes of employees.
[9] The Respondent was, and is, the bargaining representative for those employees who
will be covered by the proposed Offshore Oil and Gas Enterprise Agreement, who are
members of the Respondent and who have not appointed another bargaining representative for
the agreement, or revoked the Respondent’s status as a bargaining representative.
[10] Bargaining for the proposed Offshore Oil and Gas Enterprise Agreement proceeded
for over a year on the basis that it would cover all employees engaged to work in the offshore
oil and gas industry in the classifications referred to in the General Agreement17.
[11] During the course of bargaining, the Respondent had on 21 November 2013, applied
to the Commission for a protected action ballot order in relation to the proposed Offshore Oil
and Gas Enterprise Agreement18. At a hearing of that application held on 22 November 2013,
the Respondent withdrew the application following an objection by the Appellant founded on
s.438 of the Act,19 arguing that as the Gorgon Agreement covered some of the employees who
will be covered by the proposed Offshore Oil and Gas Enterprise Agreement, the application
could not be made.
[12] On or about 25 November 2013, the Respondent foreshadowed to the Appellant that it
would be proposing a scope clause that would exclude employees to whom the Gorgon
Agreement applies20. On 13 December 2013 the Respondent advised the Appellant that it was
seeking such a narrower scope clause21.
[13] The resolution of this appeal depends in part on the construction of certain provisions
of the Act, particularly s. 438(1), applied to the facts of this case. It is therefore necessary to
set out in some detail, the relevant statutory provisions and examine these provisions in
context. We propose to deal with the proper construction of the relevant provisions at issue in
the appeal before turning specifically to the grounds of appeal advanced by the Appellant, as
some of the grounds of appeal travel beyond the construction of s.438(1).
[14] Before doing so, it is necessary to deal with the Appellant’s application to adduce
further evidence on appeal and then to make a few brief observations about the proper
approach to statutory construction, at least so far as is relevant for the disposition of this
appeal.
Application to admit fresh evidence
[15] The Appellant has asked the Commission to exercise its discretion to admit further
evidence in the appeal. That evidence is in the form of an affidavit of Mr Benjamin O’Brien,
affirmed on 7 February 2014, together with three annexures (O’Brien affidavit). The
annexures are:
16 AB53.5
17 AB10 at [7] and AB52.10-54.7
18 AB692-695
19 AB732.10-733.5 and AB734.10-735.1
20 AB468.1, AB 512.2 and AB 573.1
21 AB55.8, AB319.3 and AB320.5
[2014] FWCFB 1317
4
correspondence from Will Tracey of the Respondent to Simon White of the
Australian Mines and Metals Association dated 16 January 2014;
email correspondence between Doug Heath of the Respondent and Ben O’Brien of
Appellant dated 30 January 2014; and
correspondence to Paddy Crumlin of the Respondent on behalf of the managers
and executives of a number of Vessel Operators dated 6 February 2014.
[16] Section 607(2) of the Act provides that:
The FWC may:
(a) admit further evidence; and
(b) take into account any other information or evidence.
[17] Relevant material that comes to light subsequent to the time of an initial hearing
may be admitted if it bears on an issue to be determined in the appeal22. It was common
ground that the exercise of the discretion to admit further evidence is governed by the
principles set out in Akins v National Australia Bank23. In Akins, the Court held at that:
Although it is not possible to formulate a test which should be applied in every case to determine
whether or not special grounds exist there are well understood general principles upon which a
determination is made. These principles require that, in general, three conditions need be met
before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not
have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that
there must be a high degree of probability that there would be a different verdict; (3) The evidence
must be credible.24
[18] In considering whether to exercise the discretion in s. 607(2), it is permissible in an
appropriate case to depart from the principles set out in Akins and the principles need not be
strictly applied25. However, we do not think this is an appropriate case.
[19] The Appellant seeks to adduce the evidence in aid of both its position on the
identification of the “proposed enterprise agreement” for the purpose s. 438(1) and on the
question of “genuinely trying to reach agreement” for the purpose of s. 443(1)(b) of the Act.
[20] It is self evidently the case that the evidence set out in the O’Brien affidavit could not
have been obtained with reasonable diligence for use at the hearing before the
Commissioner as the correspondence annexed to the affidavit, post dates the Decision. We are
also prepared to assume, without deciding, that the evidence is credible. However for reasons
that will become apparent later in this decision, we are not persuaded that there is a high
degree of probability that the evidence would result in a different conclusion on the
identification of the “proposed enterprise agreement” for the purpose s.438(1). To the extent
that the evidence is sought to be admitted for the purpose of putting in issue the question
whether the Respondent has been, and is genuinely trying to reach agreement on the proposed
agreement with the Appellant, we have found it unnecessary to admit and consider that
22 The Australian Workers' Union v Killarnee Civil & Concrete Contractors Pty Ltd, ITF The Thompson Family
Trust; Construction, Forestry, Mining and Energy Union [2011] FWAFB 4349 at [22]
23 (1994) 34 NSWLR 155
24 Ibid at [160]
25 J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia [2010] FWAFB 9963 at [95]
[2014] FWCFB 1317
5
evidence in order to determine the appeal and as we have decided to remit that question to
Commissioner Cloghan the Appellant will have the opportunity to lead that evidence and,
appropriately, the Respondent will have the opportunity to rebut, clarify or contextualise that
evidence. Consequently we refuse the Appellant’s application to admit the O’Brien affidavit.
Approach to construction of the relevant statutory provisions
[21] In considering the relevant statutory provisions at issue in this appeal the starting point
is to construe the words of the statute according to their ordinary meaning having regard to
the context and legislative purpose.26 The words of the statute being construed should be read
by reference to the language of the statute as a whole27. As Lawler VP and Bissett C observed
in JJ Richards and Sons Pty Ltd v Transport Workers’ Union of Australia28, after reciting
relevant authorities concerning statutory construction:
Drawing these principles together, the task of statutory interpretation is concerned with ascertaining
the intention of the legislature as manifested by the text of the legislation. Context (using that word in its
widest sense to include such things as the existing state of the law and the mischief which, by legitimate
means, one may discern the statute was intended to remedy) and the purpose or object underlying the
legislation must always be considered. These must be considered in the first instance, not merely at
some later stage when ambiguity might be thought to arise. The text of a provision, read in context and
having regard to the object and purpose of the provision, is always the surest guide.
29
[22] His Honour Justice Flick in J.J. Richards & Sons Pty Ltd and Another v Fair Work
Australia and Another30 discussed three long established and fundamental principles to
statutory construction. In so doing His Honour said:
First, the so-called “golden rule” of the common law as to statutory construction is that “the
grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some
absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and
inconsistency, but no farther”: Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord
Wensleydale. See also: Australian Boot Trade Employés’ Federation v Whybrow & Co [1910] HCA 53;
(1910) 11 CLR 311 at 341 to 342 per Higgins J. The “golden rule” is not confined to circumstances
where a “mistake” has been made in the wording of an Act; the rule is also applied to avoid construing
legislation so as to produce patently unintended or absurd results: Footscray City College v Ruzicka
[2007] VSCA 136 at [16], 16 VR 498 at 505 per Chernov JA (Warren CJ and Maxwell P agreeing).
Second, the common law also recognised that “[i]t is a strong thing to read into an Act of Parliament
words which are not there, and in the absence of clear necessity it is a wrong thing to do”: Thompson v
Goold & Co [1910] AC 409 at 420 per Lord Mersey. See also: Dallikavak v Minister for Immigration
and Ethnic Affairs (1985) 9 FCR 98 at 103 per Northrop and Pincus JJ; Minister for Immigration and
Citizenship v Hart [2009] FCAFC 112 at [6] per Spender J.
Third, a construction of a statutory provision is to be preferred “that would best achieve the purpose or
object of the Act”: Acts Interpretation Act 1901 (Cth) s 15AA. The requirement to look to the purpose or
object of an Act is more than an instruction to adopt the traditional mischief or purpose rule in
preference to the literal rule of construction; s 15AA requires no ambiguity or inconsistency in a
26 Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74 at [70]; Alcan (NT)
Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [14]; CIC Insurance Ltd v Bankstown
Football Club Ltd (1997) 187 CLR 384 at 408.
27 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
28 [2010] FWAFB 9963
29 Ibid at [29]
30 (2012) 201 FCR 297
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s15aa.html
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/
http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/112.html#para6
http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/112.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281985%29%209%20FCR%2098
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b1910%5d%20AC%20409
http://www.austlii.edu.au/au/cases/vic/VSCA/2007/136.html#para16
http://www.austlii.edu.au/au/cases/vic/VSCA/2007/136.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281910%29%2011%20CLR%20311
http://www.austlii.edu.au/au/cases/cth/HCA/1910/53.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281857%29%206%20HLCas%2061
http://www.worldlii.org/int/cases/EngR/1857/335.html
[2014] FWCFB 1317
6
statutory provision before a court is not only permitted, but required to have regard to purpose: Mills v
Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235. Dawson J there went on to observe that the
provision there in question, being a provision comparable to s 15AA, “... requires a court to construe an
Act, not to rewrite it, in the light of its purposes”. Similarly, in Trevisan v Commissioner of Taxation
(1991) 29 FCR 157 at 162, Burchett J observed that s 15AA “... is not a warrant for redrafting legislation
nearer to an assumed desire of the legislature. It is not for the courts to legislate ...”. See also: R v L
(1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v Minister for Immigration, Local
Government and Ethnic Affairs (1994) 51 FCR 82 at 85 per Moore J; Minister for Immigration and
Multicultural Affairs v Lim [2001] FCA 512 at [7], [2001] FCA 512; 112 FCR 589 at 592 to 593 per
Sundberg J. “In the end the task of the court is to ascertain and to enforce the actual commands of the
legislature”: Re Application of The News Corp Ltd (1987) 15 FCR 227 at 236 per Bowen CJ.
[23] We respectfully agree and apply these principles to construing the provisions at issue
in this appeal.
Relevant statutory provisions and context
[24] The Appellant submitted before us and at first instance that the PABO Application
could not and should have been made by reason of s.438(1) of the Act which provides:
Restriction on when application may be made
(1) If one or more enterprise agreements cover the employees who will be covered by the proposed
enterprise agreement, an application for a protected action ballot order must not be made
earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest
nominal expiry date of those enterprise agreements (as the case may be).
[25] In aid of this submission the Appellant says that “the proposed enterprise agreement”
in s 438(1) means, in the current context, the agreement that has been the subject of
bargaining between the Appellant and the Respondent since at least December 2012 and
identified earlier in these reasons as the proposed Offshore Oil and Gas Enterprise
Agreement. As some of the employees who will be covered by the proposed Offshore Oil and
Gas Enterprise Agreement are currently covered by the Gorgon Agreement which has a
nominal expiry date of 15 January 2016, the PABO Application must not have been made
and should therefore have been dismissed. Furthermore, the Appellant says that the
Respondent’s change of position on scope, which occurred between 15 November and 13
December 2013, was no more than a change in position about a claim made during bargaining
for the proposed Offshore Oil and Gas Enterprise Agreement. It did not result in a “proposed
enterprise agreement” which was different to that being bargained for and so cannot be relied
upon to avoid the consequence of s. 438(1).
[26] The Respondent submits that the construction of s.438(1) advanced by the Appellant is
erroneous. It says the “proposed enterprise agreement” referred to in s.438 (1) of the Act
means, in this case, no more than the agreement that is being proposed by the Respondent as
bargaining representative of employees who will be covered by that agreement. Relevantly it
is the agreement proposed by the Respondent and identified in the PABO Application. That
agreement will not cover employees who are also covered by the Gorgon Agreement.
Therefore s.438(1) is not engaged. Moreover the “proposed enterprise agreement” need not be
an agreement with a scope that was bargained about, and/or agreed, earlier in the bargaining
process. Thus the enterprise agreement proposed by the Respondent containing a narrower
scope than that which had been the subject of bargaining was the “proposed enterprise
agreement” in relation to which inquiry must be made as to whether any of the employees that
will be covered by that proposed enterprise agreement are also covered by the Gorgon
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281987%29%2015%20FCR%20227
http://www.austlii.edu.au/cgi-bin/LawCite?cit=112%20FCR%20589
http://www.austlii.edu.au/au/cases/cth/FCA/2001/512.html
http://www.austlii.edu.au/au/cases/cth/FCA/2001/512.html#para7
http://www.austlii.edu.au/au/cases/cth/FCA/2001/512.html
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281994%29%2051%20FCR%2082
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281994%29%2049%20FCR%20534
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281991%29%2029%20FCR%20157
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281990%29%20169%20CLR%20214
http://www.austlii.edu.au/au/cases/cth/HCA/1990/6.html
[2014] FWCFB 1317
7
Agreement. We will, for convenience refer to this narrower scope agreement as the
“Respondent’s proposed enterprise agreement”.
[27] In our view s.438(1) will operate to prevent an application for a protected action ballot
being made in a given case if:
the proposed enterprise agreement by its terms will cover any employee;
who is covered by an enterprise agreement that has not passed its nominal expiry date;
and
the application has been made more than 30 days before the nominal expiry date of
that enterprise agreement.
[28] It is necessary therefore to determine the meaning of “proposed enterprise agreement”
in s.438(1). In order to do so it seems to us proper to examine the role of the phrase “proposed
enterprise agreement” and of protected industrial action in the scheme of bargaining,
enterprise agreements and industrial action established by the Act.
[29] We turn then first to s.3 of the Act. It sets out the object of the Act which relevantly
includes:
The object of this Act is to provide a balanced framework for cooperative and productive workplace
relations that promotes national economic prosperity and social inclusion for all Australians by:
...
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining
underpinned by simple good faith bargaining obligations and clear rules governing industrial action; ....
[30] The means by which those matters identified in paragraph (f) above are to be achieved
by the Act are set out principally in discrete parts of Chapters 2 and 3 of the Act. The
regulation of enterprise-level collective bargaining, agreement-making and good faith
bargaining are set out in Part 2-4 of Chapter 2, while Part 3-3 of Chapter 3 contains rules
governing industrial action.
[31] Part 2-4 of the Act, which deals with enterprise agreements and bargaining begins with
the objects of Part:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith,
particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable FWC to facilitate good faith bargaining and the making of enterprise agreements,
including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to FWC for approval of enterprise agreements are dealt with
without delay.
[2014] FWCFB 1317
8
[32] Part 3-3 the Act, which deals with industrial action, does not contain provisions setting
out the objects of the Part. However Division 8 of Part 3-3, which concerns protected action
ballots and in which is to be found s.438, contains a provision dealing with the object of that
Division. Section 436 provides as follows:
436 Object of this Division
The object of this Division is to establish a fair, simple and democratic process to allow a bargaining
representative to determine whether employees wish to engage in particular protected industrial action
for a proposed enterprise agreement.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than
employee response action) is not protected industrial action unless it has been authorised in advance by
a protected action ballot.
[33] Although bargaining for a proposed agreement is an important feature of the scheme
established by the Act, the capacity of a bargaining representative to apply for a protected
action ballot order, for such an order to be made and for employees who will be covered by
the proposed agreement to engage in protected industrial action is not confined to the period
after bargaining for the proposed agreement between an employer and employees has begun31.
Excepting the prohibition of making an application in s.438(1), the Commission must make a
protected action ballot order in relation to employee who will be covered by a proposed
agreement in the circumstances set out in s.443. Section 443 relevantly provides:
443 When FWC must make a protected action ballot order
(1) FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWC is satisfied that each applicant has been, and is, genuinely trying to reach an
agreement with the employer of the employees who are to be balloted.
(2) FWC must not make a protected action• ballot order in relation to a proposed enterprise agreement
except in the circumstances referred to in subsection (1).
[34] The word “agreement” referred to in s.443 (1)(b) is a reference to the “proposed
enterprise agreement” referred to in the opening words of s.443.32
[35] A bargaining representative for a proposed enterprise agreement may take steps under
the Act both before and after bargaining between an employer and employees has begun33.
[36] Part 2-4 makes provision in several places for applications to be made to the
Commission for determinations or orders that can facilitate bargaining. Many of the
provisions enable such applications to be made before bargaining has begun. These include
for example, applications under:
s.236 - 237 - a majority support determination (if an employer refuses to bargain)
31 Ibid at [30]-[31], [33], [58] and [71]
32 J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963 at [54]; Australian Postal
Corporation v CEPU [2010] FWAFB 344 at [60]; see also Australian Postal Corporation v CEPU [2009] FWAFB 599
at [43] - [45]
33 See for example MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519; see also
section 236 of the Act (majority support determinations)
http://www.fwa.gov.au/decisionssigned/html/2009fwafb599.htm
[2014] FWCFB 1317
9
s.238 - a scope order (to determine a disputed scope of a proposed enterprise
agreement);
s.242 - 243 -a low-paid authorisation (to enable access to special bargaining
provisions applicable only in relation to low-paid employees);
ss.248 - 250 - a single- interest authorisation (if employees with sufficiently similar
interests seek to bargain together).
[37] Other remedial provisions in Part 2-4 are only available to a bargaining representative
once bargaining has begun. These include:
s.229 - 230 - good faith bargaining orders (where a bargaining representative is not
observing the good faith bargaining requirements); and
s.234 - a serious breach declaration (where there are serious and persistent breaches of
a good faith bargaining order).
[38] Protected industrial action is defined in s.408 and relevantly includes: “(a) employee
claim action for the agreement (see section 409)”. Section 409 relevantly provides:
409 Employee claim action
Employee claim action
(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in
relation to the agreement that are only about, or are reasonably believed to only be about,
permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the
agreement, by:
(i) a bargaining representative of an employee who will be covered by the
agreement; or
(ii) an employee who is included in a group or groups of employees specified in a
protected action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
Protected action ballot is necessary
(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).
Unlawful terms
(3) The industrial action must not be in support of, or to advance, claims to include unlawful terms in
the agreement.
Industrial action must not be part of pattern bargaining
(4) A bargaining representative of an employee who will be covered by the agreement must not be
engaging in pattern bargaining in relation to the agreement.
[2014] FWCFB 1317
10
Industrial action must not relate to a demarcation dispute etc.
(5) The industrial action must not, if it is being organised or engaged in by a bargaining representative,
relate to a significant extent to a demarcation dispute or contravene an FWA order that relates to a
significant extent to a demarcation dispute
. . .
[39] Section 413 sets out the “common requirements” for protected industrial action:
413 Common requirements that apply for industrial action to be protected industrial action
Common requirements
(1) This section sets out the common requirements for industrial action to be protected industrial action
for a proposed enterprise agreement.
. . .
Genuinely trying to reach an agreement
(3) The following persons must be genuinely trying to reach an agreement:
(a) if the person organising or engaging in the industrial action is a bargaining representative
for the agreement--the bargaining representative;
(b) if the person organising or engaging in the industrial action is an employee who will be
covered by the agreement--the bargaining representative of the employee.
. . .
No industrial action before an enterprise agreement etc. passes its nominal expiry date
(6) The person organising or engaging in the industrial action must not contravene section 417 (which
deals with industrial action before the nominal expiry date of an enterprise agreement etc.) by
organising or engaging in the industrial action.
[40] Section 417 prohibits, inter alia, the taking of industrial action, including protected
industrial action, by persons and organisations covered by an enterprise agreement that has
not passed its nominal expiry date. That section provides:
No industrial action
(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on
which:
(a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or
(b) a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision (see Part 4-1).
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#civil_remedy_provision
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#industrial_action
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#nominal_expiry_date
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#workplace_determination
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#nominal_expiry_date
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#approved_by_the_fwc
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#enterprise_agreement
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#industrial_action
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#common_requirements
[2014] FWCFB 1317
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(2) The persons are:
(a) an employer, employee, or employee organisation, who is covered by the agreement or
determination; or
(b) an officer of an employee organisation that is covered by the agreement or determination, acting in
that capacity.
[41] Section 437 enables a bargaining representative to apply for a protected action ballot
order. Section 437(1) provides:
A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or
2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected
action ballot order) requiring a protected action ballot to be conducted to determine whether employees
wish to engage in particular protected industrial action for the agreement.
[42] It is to be observed from the above, that the Act variously makes reference to a
“proposed agreement”, or the ”proposed enterprise agreement” and “proposed single-
enterprise agreement” to describe in a particular context the same concept, that is, the
agreement that is being proposed by a party wishing to bargain or by one that is actually
bargaining. That this is so seems to be confirmed by the Explanatory Memorandum to Fair
Work Bill 2008 and its description of the use of the phrase “proposed enterprise agreement” in
Parts 2-4 and 3-3 as “a generic term”34, and its reference to the decision in Wesfarmers
Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Union (No
2)35 in which French J referred to the use of the words “proposed agreement” in s. 170MI of
the Workplace Relations Act 1996 as a “generic term [that] allows for a variety of
possibilities”36. The content of a proposed agreement need not be settled nor need the scope of
a proposed agreement be agreed between the bargaining parties for that which is proposed by
one party to bear the character of a proposed agreement or proposed enterprise agreement for
the purposes of the Act.
[43] In MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union37, a Full
Bench of Fair Work Australia observed that :
The Fair Work Act 2009 (FW Act) uses the expression “proposed enterprise agreement”, “proposed single-
enterprise agreement” and “proposed agreement” in a number of places. An agreement may be “proposed”
by an employer or it may be “proposed” by a bargaining representative of employees or there may be
different and competing agreements “proposed” by both. Where a person makes an application under the
FW Act in their capacity as a bargaining representative for a “proposed enterprise agreement” or “proposed
single enterprise agreement”, the bargaining representative is entitled to rely on the agreement it has
proposed or it may choose to make the application in relation to an agreement proposed by another
bargaining representative. In this case, it was the LHMU that first “proposed” an agreement and it was the
agreement proposed by the LHMU that was the “proposed single” for purposes of the LHMU’s application
for a protected action ballot order under s.437.
[44] We respectfully agree and adopt those observations in resolving the meaning of “a
proposed agreement” in s.438(1).
34 Explanatory memorandum at [643]
35 Ibid; (2004) 138 IR 362
36 Ibid at [55]
37 [2010] FWAFB 6519
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee_organisation
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee_organisation
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee_organisation
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee_organisation
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employer
[2014] FWCFB 1317
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Meaning of and indentify the “proposed enterprise agreement” in s.438
[45] The prohibition of making an application for a protected action ballot order under
s.438(1) is, in our view, concerned with identifying whether an employee who is covered by
an enterprise agreement that has not passed its nominal expiry date will also be covered by the
proposed enterprise agreement. The relevant enquiry is therefore directed to assessing
whether any of the employees who will fall within the scope of the proposed enterprise
agreement that is the subject of the application are also covered by an enterprise agreement
that has not passed its nominal expiry date.
[46] When read in context, “a proposed enterprise agreement” in s.438(1) seems to us to
mean no more than the agreement the bargaining representative applying for an order under s.
447 is proposing at the time the application for a protected action ballot order is made. It is
that agreement to which the ballot will relate and it is employees represented by the
bargaining representative who fall within the scope of that agreement (or a group of such
employees) who will vote on questions of particular industrial action. That the Appellant does
not agree with the scope of the proposed agreement or would prefer a broader scope or that
the bargaining parties have bargained for a broader scope previously is, for the purpose of
identifying the proposed enterprise agreement to which s.438(1) might relate, irrelevant in
considering whether s.438(1) prohibits an application being made.
[47] In our view, this construction adheres to the ordinary meaning of “a proposed
enterprise agreement” and does not lead to any absurdity or repugnance. It is consistent with
the objects and purpose of the scheme of bargaining, agreement-making and industrial action
established by the Act.
[48] In this case the Respondent proposes an agreement with a scope that excludes
employees to whom the Gorgon Agreement applies. For present purposes we do not think that
anything material turns on the fact that the application is expressed to exclude employees to
whom the Gorgon Agreement “applies” rather than excluding employees “covered” by the
Gorgon Agreement. The PABO Application is limited to only those employees that will be
covered by the Respondent’s proposed enterprise agreement. Those employees are not
covered by another enterprise agreement that has not passed its nominal expiry date. It
follows that the Respondent is not prevented by reason of s.438(1) from making the PABO
Application.
[49] We also observe that s.438(1) reflects the intent underpinning the Act that industrial
action not be engaged in or organised by persons covered by an enterprise agreement which is
yet to pass its nominal expiry date. Section 417 of the Act to which we earlier referred also
reflects that intent.
[50] The construction of s.438(1) that we favour is consistent with and does undermine that
intent. The employees who are balloted on the question of whether particular industrial action
should be authorised are not covered by an enterprise agreement that has not passed its
normal expiry date. Only those employees covered by the General Agreement who are not
also covered by the Gorgon Agreement are the persons to be balloted. Further, no employee
covered Gorgon Agreement will be covered by the Respondent’s proposed enterprise
agreement. Neither s. 438(1) nor s.417 operate so as to prevent the taking of protected
industrial action by employees who are not covered by an in term enterprise agreement in
[2014] FWCFB 1317
13
furtherance of claims for a proposed enterprise agreement, which by its scope will be limited
to covering only those employees.
[51] We now turn to consider the specific grounds of appeal advanced by the Appellant.
First ground of appeal - s. 438 and proposed enterprise agreement
[52] The first ground of appeal alleges error on the part of the Commissioner in his
conclusion that the “proposed enterprise agreement” for the purposes of s. 438 of the Act was
the narrower scope agreement proposed by the Respondent in its PABO Application and not
the proposed Offshore Oil and Gas Enterprise Agreement that had been the subject of
bargaining for over 12 months before the PABO Application was made.
[53] For the reasons we have identified at [24] to [50] we think the Commissioner was
correct in his conclusion that the Respondent was entitled to make the PABO Application
relying on the Respondent’s proposed enterprise agreement, being the agreement with a
narrower scope that excluded employees covered by the Gorgon Agreement, and
consequently that “section 438 of the Act is not applicable in this instance”38. We therefore do
not discern any appellable error in this regard.
[54] Further, to the extent that the Appellant argues under this ground that the
Commissioner erred in not making a finding whether the Respondent had ceased to bargain
for the proposed Offshore Oil and Gas Enterprise Agreement, we disagree. Such a finding
was neither necessary nor relevant to the identification of the proposed enterprise agreement
or the operation of s.438 of the Act. It may be relevant to determining the issue of genuinely
trying to reach agreement for the purposes of s.443(1)(b), but that submission was not put to
us nor to the Commissioner at first instance. We also reject the Appellant’s submission that
the Respondent cannot unilaterally change the scope of the agreement that is being bargained
for. The very essence of a “proposed enterprise agreement” involves a degree of unilateral
action by a bargaining representative. Whether other parties accept the unilaterally altered
scope, or agree to bargain on that proposed enterprise agreement is a question that is perhaps
relevant to different issues, but not one that is relevant to determining whether s.438 applies.
Second ground of appeal - misapplication of the decision in MSS Security
[55] The second ground of appeal concerns the proper application of the decision in MSS
Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union39 and in particular [18] of
that decision.
[56] The Commissioner dealt with the decision in MSS Security as follows:
[35] Applying this approach then the MUA has made an application in their capacity as a bargaining
representative for a proposed enterprise agreement and as such they are entitled to rely on the
agreement they have proposed which in this case means a proposed enterprise agreement with the
MUA’s preferred scope, which excludes from its coverage employees covered by the 2011 Gorgon
Agreement. The MUA have previously notified Mermaid and AMMA of the MUA’s preferred scope
and this is indeed recorded in the most recent version of the AMMA draft agreement 5.
38 AB15 at [43]
39 [2010] FWAFB 6519
http://www.fwc.gov.au/decisionssigned/html/2014FWC8.htm#P154_14760
[2014] FWCFB 1317
14
[36] The fact that throughout the process of bargaining from late 2012 until November 2013 the MUA
had agreed with the respondent as to the scope of the proposed enterprise agreement does not alter
their right to now make a ballot order application for a proposed enterprise agreement with the
MUA’s preferred scope.
[37] The respondent and the applicant both accept that the scope of a proposed agreement is a matter
that can itself be the subject of bargaining. The authorities are clear on this point. As the Full Bench in
the MSS Security case observed:
“[14] In Stuartholme School v The Corporation of the Trustees of the Roman Catholic Archdiocese
of Brisbane (Stuartholme) a Full Bench of Fair Work Australia held that the scope of a proposed
agreement is a matter than can itself be the subject of bargaining for the agreement. We
respectfully endorse the reasoning and conclusion of the Full Bench in that regard.” (References
omitted)
[38] The Full Bench in the MSS Security case also considered the situation of the parties where they
were in dispute over the scope of the proposed agreement and observed that:
“[18] ...Where there is a continuing disagreement between the bargaining parties as to the scope
of the proposed enterprise agreement, the remedy for the party who wants a narrower scope is to
seek a scope order pursuant to s.238. In the absence of such an order, bargaining will proceed on
the basis of the Respondents preferred scope, save that the parties are entitled to continue
bargaining over the scope itself until such time as the scope of the proposed agreement is settled
through bargaining or by the making of a scope order.” (Underlining added)
[39] Obviously pursuing a section 238 scope order is one option open to a bargaining party as a means
of resolving a dispute about a proposed agreements scope. In my view though the first sentence of this
statement from the Full Bench is not to be taken as authority for the proposition that the bargaining
party who wants the narrower scope, where this is disputed, is obliged to seek a scope order under
section 238 of the Act. This is in effect what the respondent has submitted is the correct approach for
the MUA in this case.
[40] Rather the Full Bench was merely pointing to the fact that applying for a section 238 scope order
is a remedy available. The benefit to such a party of a section 238 scope order application is that
potentially one party’s view of the preferred scope for a proposed enterprise agreement will be
imposed on the other bargaining party by virtue of a Commission order. However the Full Bench went
on to note that in the absence of a scope order the parties are entitled to continue bargaining over the
scope until that is settled through bargaining or by the making of a scope order.
[41] The employee bargaining representative in this matter as part of seeking to resolve the dispute
over the scope of the proposed agreement and other disputed matters has opted to apply for a ballot
order to test whether the employees they wish to be covered by the proposed agreement support
potentially taking industrial action to influence Mermaid to accept their claims. Within the scheme of
the Act such a ballot order application is part of that process of bargaining.40
[57] The Appellant criticises this part of the Decision on two bases. It submits firstly that
the Commissioner stated wrongly that: “bargaining will proceed on the basis of the
Respondents scope”, rather than: “bargaining will proceed on the basis of the broader scope”
The Appellant submits that the decision in MSS Security makes clear that until scope is
resolved by agreement or order, bargaining must proceed on the basis of the broader scope,
regardless of what scope is proposed by which party. Secondly the Appellant says that
contrary to the Commissioner’s application of the MSS Security decision at [39] and [40] of
the Decision, at [18] of the MSS Security decision the Full Bench held that:
40 AB14-AB15
[2014] FWCFB 1317
15
(a) in circumstances where the scope of a proposed enterprise agreement is in dispute,
the remedy for the party who seeks a narrower scope is to apply for a scope order
pursuant to section 238 of the Act (emphasis added); and
(b) in the absence of such an order, bargaining will proceed on the basis of the
broader scope.
[58] It was therefore submitted that as the Commissioner found that an application for a
scope order pursuant to s.238 was “only one” remedy available in such circumstances he was
in error.
[59] We do not accept that the misquote relied upon by the Appellant amounts to a
misconstruction of the Act, nor did it alter the effect of the decision in MSS Security or result
in a misapplication by the Commissioner of the decision. First, the reference to “broader
scope” in the decision in MSS Security41 when considered in the context of the decision as a
whole is clearly a reference to the Respondent’s proposed scope in that case. Secondly, for the
reasons which follow, the misquoted paragraph did not lead to an improper application by the
Commissioner of the decision in MSS Security.
[60] As to the second issue, we think the Appellant’s submission proposes a far wider
proposition than that which is advanced in MSS Security. At [18] of MSS Secuirity, the Full
Bench was considering the question of disputed scope in the context of whether an obligation
to issue a NERR arose and if so whether it should be issued to employees within the broader
or narrower scope. It was not making a statement of broader application. This seems clear
when [18] is read with the paragraphs that immediately proceed and follow it, which for
convenience we reproduce below:
[17] However, once an employer has agreed to bargain in relation to a group of employees within the
scope of an agreement as proposed by a union or other employee bargaining representative, the
employer is obliged to:
issue a notice of representational rights to the employees within the scope of the agreement
proposed by the union or other employee bargaining representative; and
bargain in good faith in accordance with s.228.
[18] As the Full Bench in Stuartholme noted, “[t]he terms of [s.237] unambiguously suggest that
bargaining may have commenced under the Fair Work Act even though the parties to the bargaining
process are in disagreement about the scope of the proposed agreement.” Where there is a continuing
disagreement between the bargaining parties as to the scope of the proposed enterprise agreement, the
remedy for the party who wants a narrower scope is to seek a scope order pursuant to s.238. In the
absence of such an order, bargaining will proceed on the basis of the broader scope, save that the parties
are entitled to continue bargaining over the scope itself until such time as the scope of the proposed
agreement is settled through bargaining or by the making of a scope order.
[19] It follows from the scheme of the FW Act that the obligation under s.173 is to issue a notice of
representational rights to the broader class of employees even though the employer does not wish to
have an agreement that extends that far. If it were otherwise, it would mean that an employer could
always prevent an agreement having a broader scope than it desired by simply refusing or failing to
issue notices of representational rights outside its desired scope. Such an outcome is inconsistent with
the scheme of the FW Act.
41 [2010] FWAFB 6519 at [18]
[2014] FWCFB 1317
16
[61] When read in context we think that the paragraph in issue in MSS Security should
properly be interpreted as saying no more than a disagreement over scope may ultimately be
settled either through bargaining, which may include protected industrial action, or by the
making of a scope order. It must also be remembered that there is limited availability to scope
orders. An application for a scope order is not an available remedy to resolve any disputes
about scope per se. Before an application for a scope order may be made, a bargaining
representative must have concerns that bargaining is not proceeding efficiently or fairly
because that bargaining representative considers that the proposed agreement will not cover
appropriate employees, or will cover employees that it is not appropriate for the agreement to
cover.42 Viewed in its proper context, a scope order is not a universal remedy for a dispute
about scope, rather it is a remedy for bargaining that is not proceeding efficiently or fairly
because of a bargaining representative’s view about employee coverage of a proposed
agreement. Not every dispute about scope will have the effect of impeding bargaining in this
way.
[62] In our view the misquoted paragraph from MSS Security did not lead to any error of
fact or law nor did the Commissioner misapply the decision in MSS Security. The
Commissioner’s conclusion that a scope order application was “only one” remedy in
resolving scope issues was in our view correct.
Third ground of appeal - identifying employees who will be covered by the proposed
agreement who should be balloted
[63] The third ground of appeal concerns the potential difficultly said to arise from the
possibility that at different times, employees who will be covered by the Respondent’s
proposed enterprise agreement, are covered by the Gorgon Agreement some of the time and
by the General Agreement at other times depending on the work being performed or assigned.
The Appellant submits that arriving at the Decision, the Commissioner failed to give any, or
any proper, weight to the evidence that there are employees who should be within the group to
be balloted who:
(a) will, from time to time, perform work in classifications to which the Gorgon
Agreement applies and who will, from time to time, perform work to which the
General Agreement applies; and
(b) as a consequence, at all times, are therefore covered by the General Agreement.
[64] It was submitted that Commissioner’s failure to give any, or any proper, weight to the
fact that there are employees who will perform work to which the Gorgon Agreement and the
General Agreement will at different times apply, depending on what work they are doing at
any given point in time, results in the undesirable and unintended consequence that some of
those employees may not have a democratic say in the process which is intended to produce
an enterprise-level collective agreement. This consequence will arise if employees are, at the
time of the protected action ballot for the Respondent’s proposed enterprise agreement (which
on the Respondent’s contention will only replace the General Agreement), performing work
to which the Gorgon Agreement applies.
42 See s. 238(1)
[2014] FWCFB 1317
17
[65] It was submitted that such an outcome is arbitrary and contrary to the legislative intent
that such persons should have a democratic say in the negotiation of any enterprise-level
collective agreement which ultimately covers, and may be applied to them.
[66] In our view, these are matters of practicality in determining which employees are
entitled to vote for the proposed industrial action and which employees are entitled to
participate in protected industrial action once notice of the action is given. They do not bear
upon the question whether s.438 operates as a bar to the PABO Application or on whether the
matters in s.443(1) are satisfied. The PABO Application makes clear that employees to whom
the Gorgon Agreement applies are not within the group of employees to be balloted43. It is not
unusual, particularly amongst a large group of employees of an employer, for the constituency
of a group of employees to change during the ballot and by the time that notice of protected
industrial action is given, and even between the giving of notice and the taking of action.
Moreover it is not unusual for an employee to transfer between classifications or type of
work, the result of which might be that another agreement covers that employee whilst
working in the new classification or undertaking that type of work. These practical difficulties
to not provide a basis for refusing to make a protected action ballot order. To the extent that
this ground also raises the issue of which employees “will be covered” we deal with that issue
under ground 5 of the appeal below. We are unable to identify any appellable error based on
this ground.
Fourth ground of appeal
[67] As to the fourth ground of appeal, the Appellant says that having regard to each of
grounds 1, 2 and 3 of the appeal, there was no ability for the Respondent to make the PABO
Application and no jurisdiction for the Commissioner to make the Order, by reason of s.438
of the Act. As we have concluded that there is no appellable error identified by any of
grounds 1, 2 or 3 of the appeal, it follows that this ground also fails.
Fifth ground of appeal - “will be covered”
[68] In its fifth ground of appeal the Appellant says that the Commissioner erred in finding
that the Respondent’s 13 December 2013 proposal on scope would not cover employees who
are covered by the Gorgon Agreement. The Appellant submitted that the exception contained
in the Respondent’s scope proposal, which deals with coverage, is expressed to operate in
respect of employees to whom the Gorgon Agreement applies. It goes on to state, that for the
avoidance of doubt, should the Gorgon Agreement be terminated, the enterprise agreement
proposed by the Respondent would apply. It is submitted that the way in which the exception
is expressed makes it clear that the Respondent’s 13 December 2013 scope proposal covers
the employees to whom the Gorgon Agreement applies.
[69] Thus it was submitted that when considering coverage of the Respondent’s 13
December 2013 scope proposal, it is simply not to the point that at any particular time
employees to whom the Gorgon Agreement applies may be excluded. The position is not
different to the current position in relation to the interaction between the General Agreement
and the Gorgon Agreement. If the Gorgon Agreement applies, the General Agreement does
not apply, but that does not alter the coverage of the General Agreement. That is, the
43 AB3 at [3]
[2014] FWCFB 1317
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Respondent’s 13 December 2013 scope proposal, even with the exception propounded by the
Respondent, must include within its coverage employees covered by the Gorgon Agreement.
[70] It was submitted that s.438 is invoked if more than one enterprise agreement covers
employees who will be covered by the proposed enterprise agreement. Section 438 applies
where the proposed enterprise agreement will cover employees who are covered by an
enterprise agreement which is not within 30 days of its nominal expiry date, regardless of
whether the proposed enterprise agreement is expressed to not apply to those employees.
Accordingly, the Respondent could not make the application and the Commissioner, as a
consequence, was not empowered to hear and determine the Application.
[71] The first part of the Appellant’s argument turns on the proper construction of the
phrase “will be covered” in s.438 of the Act.
[72] In Construction, Forestry, Mining and Energy Union v Hamberger and Another44
Katzmann J considered the meaning of the phrase “will be covered” in the context of s.172 of
the Act. Her Honour said:
The first question, then, is what is meant by the expression “who will be covered by the agreement”,
more particularly what “will” means in this context.
The starting point is to construe the words according to their ordinary meaning having regard to their
context and legislative purpose. Context includes the existing state of the law and the mischief it was
intended to remedy. See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern
Territory) (2009) 239 CLR 27 at [14]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187
CLR 384 at 408. The words should be read by reference to the language of the statute as a whole:
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
The majority interpreted “will” in the expression to mean “future likelihood” (which the majority
apparently took to be synonymous with an expression of present intention). The CFMEU submitted that
the more appropriate meaning of “will be covered” in context is that coverage of the employees
employed at the time the agreement is made is a necessary result of the agreement being made,
intimating that such an interpretation provided the required degree of certainty. In any event, the
CFMEU submitted that, even if the majority were correct, in this case it could not be said that it was
intended that the employees who are employed at the time will be covered by the agreement if there is a
clear indication in the agreement itself that they may not be. Thus, it was said, the employees who are
employed at the time and participate in the vote for the agreement might be covered by it; it cannot be
said they necessarily will be covered.
The majority’s interpretation reflected one of the meanings given to the auxiliary verb in the Macquarie
Dictionary:
indicating future likelihood: I will take a taxi; she will meet us there; do you think it will rain?;
you will be surprised.
The CFMEU’s contention reflects one of the meanings given in the Oxford English Dictionary:
expressing a determinate or necessary consequence (without the notion of futurity).
In my view, the construction which the CFMEU espouses is the preferable one. It more accurately
reflects the sense in which the expression is used in the statute. But I do not think that this is
determinative of the question of validity.
In ascertaining the meaning of the statutory words an examination of the existing state of the law has
proved unhelpful. Section 327 of the Workplace Relations Act (now repealed) provided:
44 (2011) 195 FCR 74
http://austlii.edu.au/au/cases/cth/HCA/194/355.html#para69
http://austlii.edu.au/au/cases/cth/HCA/194clr355.html
http://austlii.edu.au/au/cases/cth/HCA/187clr384.html
http://austlii.edu.au/au/cases/cth/HCA/187clr384.html
http://austlii.edu.au/au/cases/cth/HCA/239/27.html#para14
http://austlii.edu.au/au/cases/cth/HCA/239clr27.html
[2014] FWCFB 1317
19
An employer may make an agreement (an employee collective agreement ) in writing with persons
employed at the time in a single business (or part of a single business) of the employer whose
employment will, or would but for the operation of an ITEA that has passed its nominal expiry
date, be subject to the agreement.
I have been unable to find any authority that considered the meaning of the expression “will ... be
subject to the agreement” in that section. Certainly, my attention was drawn to none.
Notwithstanding what the majority appear to have thought, the Explanatory Memorandum is also
unhelpful on this question. They referred to paragraph 683, which states:
The use of the phrase ‘employees who will be covered by the agreement’ in clause 172 is intended
to make clear that the employees covered by the agreement are not limited to those employees who
were employed at the time the agreement was made. An agreement covers all employees whom it
is expressed to cover (clause 53). This includes persons employed at the time the agreement was
made and persons employed at a later time provided that they fall within a class or group of
employees who are expressed to be covered by the agreement.
The majority said of this passage:
This makes clear that the phrase “employees who will be covered by the agreement” refers to the
class or group of employees who are expressed to be covered by the agreement. It does not restrict
how the agreement specifies that class or group. As with any other term of an agreement it is a
matter for the parties to decide what they agree about (subject to meeting the specific requirements
contained in ss. 186 and 187).
[Emphasis in original.]
In essence, all the majority picked up from paragraph 683 was the reference to clause 53 (now s 53 of
the Act). In my view, whatever the intention of the draftsperson may have been, the use of the
expression “employees who will be covered by the agreement” in s 172 does not make it clear “that the
employees covered by the agreement are not limited to those employees who were employed at the time
the agreement was made”, but may also include employees employed at a later time as long as they fall
within the specified class. On the contrary, s 172 is concerned with the making of an enterprise
agreement and the employer can hardly make an enterprise agreement with employees not yet
employed, even if some time in the future they may be covered by the agreement. Objectively, the
intention of the legislature in using the expression was to ensure that the employer could only make an
agreement with those employees who were named or described in the agreement and whom the
agreement purported to cover.45
[73] We think Her Honour is correct and we see no reason to ascribe a different meaning to
that phrase as it appears in s.438. To similar effect, a Full Bench of Fair Work Australia in
CBI Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union46said:
[16] These grounds of appeal turn on the proper construction of the expression “a majority of
employees … who will be covered by the agreement” in s 237(2)(a). CBI contends that the word “will”
is concerned with future likelihood and the expression requires an assessment of which employees, if
any, “will” be covered by the proposed agreement and then ascertaining that a majority of those
employees want to bargain. It was argued that, on the evidence before him, the Deputy President could
not be satisfied that any employees would be covered by an agreement made through bargaining that
occurred as a consequence of the majority support determination sought by the CFMEU.
[17] We were not persuaded by those arguments. The Macquarie Dictionary, for example, demonstrates
that the word “will” has a range of meanings. That word is not invariably concerned with “future
likelihood”.
45 Ibid at [69]-[79]
46 [2011] FWAFB 7642
[2014] FWCFB 1317
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…
[22] The expression “employees who will be covered by [an] agreement” appears in numerous sections
of the FW Act [footnote omitted].
[23] When consideration is given to the many contexts in which the expression “employees who will be
covered by [an] agreement” is used, we are compelled to the conclusion that the legislature used that
expression merely as a way of conveniently referring to the group or groups of employees who are
proposed to be covered by an agreement (and who, therefore, will be covered when the agreement is
made) rather than as a requirement that calls for a prediction as to which particular employees in the
group will, when the agreement is made, be covered by the agreement.47
[74] In the present context, s.438 is concerned with identifying employees who are covered
by the Gorgon Agreement and ascertaining whether any such employee “will” also be covered
by the proposed enterprise agreement. The answer is to be gleaned from the scope of the
proposed enterprise agreement which excludes persons to whom the Gorgon Agreement
applies and then asking: will the scope of the Respondent’s proposed enterprise agreement
determine or as a necessary consequence would determine (without the notion of futurity) that
employees covered by the Gorgon Agreement “will be covered” by the Respondent’s
proposed enterprise agreement? The answer must be “no”.
[75] As to the second part of the Appellant’s argument, we do not think that the Appellant’s
proposition by reference to the current interaction between the General Agreement and the
Gorgon Agreement − that if the Gorgon Agreement applies, the General Agreement does not
apply, but that does not alter the coverage of the General Agreement (our emphasis) − is
analogous with the position that pertains vis-a-vis the Gorgon Agreement and the
Respondent’s proposed enterprise agreement. Assuming both instruments were in operation,
when the Respondent’s proposed enterprise agreement applies to an employee, the Gorgon
Agreement would not apply and the Gorgon agreement would not cover that employee
because necessarily that employee would not be performing work under the Gorgon Contract
as determined by the Appellant48. Conversely when the Gorgon Agreement is applied to an
employee, the Respondent’s proposed enterprise agreement would neither apply nor cover
that employee by reason of the exclusion of such an employee from the scope of the
Respondent’s proposed enterprise agreement.
[76] It follows that we are unable to discern any appellable error based on this ground of
appeal.
Sixth ground of appeal - “genuinely trying to reach agreement”
[77] Before the Commission is required to make a protected action ballot order in relation
to a proposed enterprise agreement, it must be satisfied that the applicant for the order, in this
case the Respondent, “has been, and is, genuinely trying to reach an agreement with the
employer of the employees who are to be balloted”49. The Commissioner concluded that he
was satisfied that the Respondent has been, and is, genuinely trying to reach agreement with
the Appellant. The Commissioner’s reasons for reaching this conclusion are to be found at
[44] of the Decision:
47 Ibid [16]-[17] and [22]-[23]
48 See AB119-172; Gorgon Agreement, Clause 3.1 – Scope. Note that ‘Gorgon Contract’ is defined in Clause 2 – Definitions
of the Gorgon Agreement
49 Section 443(1)(b)
[2014] FWCFB 1317
21
[44] I am satisfied that an application has been properly made under section 437 of the Act and the notice
of application required by section 440 of the Act has been provided. The respondent does not dispute and
the evidence does demonstrate to my satisfaction that the MUA has been, and is, generally (sic) trying to
reach an agreement with Mermaid. I am satisfied that all the requirements of the Act have been met and as
required by section 443 I must now make a protected action ballot order in relation to the proposed
enterprise agreement.50
[78] The Appellant submits that the Commissioner should not have been satisfied that the
Respondent was genuinely trying to reach agreement within the meaning of s.443(1)(b) of the
Act. It also submits that it is entitled to raise the matter on appeal where the decision below is
tainted by the error even though it did not raise the issue before the Commissioner. It submits
that before the Commissioner it made no concession on the question whether the Respondent
has been, and is, genuinely trying to reach an agreement with the Appellant; rather it simply
did not seek to be heard on the issue. The Commissioner nevertheless had to be satisfied, on
the evidence, of the matters in s.443(1)(b). During the course of proceedings before the
Commissioner, the following exchange took place:
MR POWER: Commissioner, may I just interrupt there and just indicate that we’re not going to be
heard on the question of genuinely trying, so if that assists Ms Palmer, so be it.
MS PALMER: Thank you. I think we’re still obliged to make our case in any event.
THE COMMISSIONER: Yes, I think you are. But, yes.51
[79] The exchange reproduced above is consistent with the Appellant’s submission before
us.
[80] The Appellant says that the Commissioner should have but did not draw an inference
from the available evidence that the Respondent was not genuinely trying to reach an
agreement with the employer on the Respondent’s proposed agreement. Rather the
Respondent’s change of position on scope in December 2013 was motivated by a desire to
avoid the effect of s.438. The Appellant submitted that the inference was available on the
basis of the following evidence:
negotiations between the Appellant and the Respondent for the proposed Offshore Oil
and Gas Enterprise Agreement for over 12 months during which the scope issue now
raised by the Respondent was never raised;
the Respondent raised the scope issue only after it had withdrawn its earlier protected
action ballot application because of the effect on that application of s.438; and
there was no evidence before the Commissioner which offered any other reason for the
Respondent’s change in position on scope52.
[81] Consequently the Respondent’s evidence that it was genuinely trying to reach an
agreement with the Appellant on its proposed agreement should have been considered against
the other available evidence and if that had been done it would not have been open to the
Commissioner to conclude that the Respondent has been, and is, genuinely trying to reach
agreement with the Appellant on the Respondents proposed enterprise agreement.
50 [2014] FWC 8 at [44]
51 AB36; PN157-PN159
52 See summary of background at AB 10 at [7] - [14] which records certain evidentiary matters
[2014] FWCFB 1317
22
[82] The Respondent submits firstly that we should not entertain this ground because the
Appellant did not make any submissions before the Commissioner on the question of whether
the Respondent has been, and is, genuinely trying to reach an agreement with the Appellant. It
was submitted that had the Appellant raised the issue at first instance the Respondent could
have called evidence or made additional submissions to meet any objection by the Appellant.
The Respondent says that Mr Tracey gave evidence that the Respondent had genuinely tried
to reach an agreement with the Appellant and having done so the evidentiary onus on the
issue shifted to the Appellant. As the Appellant chose not to take the point at first instance or
take any step to discharge the onus that the Respondent was not genuinely trying to reach an
agreement, it was too late on appeal to attempt to do so.
[83] Further, the Respondent submit that the Commissioner was correct in any event in
concluding and that it has been, and is, genuinely trying to reach an agreement with the
Appellant.
[84] It is true that the Appellant did not wish to be heard on the question whether the
Respondent has been, and is, genuinely trying to reach an agreement with the Appellant53.
However it was also correctly accepted by the Respondent during the proceeding before the
Commissioner that it nevertheless has to satisfy the Commissioner that it has been, and is,
genuinely trying to reach an agreement with the Appellant54.
[85] On appeal the Appellant is effectively arguing that the Commissioner did not take into
account evidence that was relevant to his assessment of whether the Respondent has been, and
is, genuinely trying to reach an agreement with the Appellant. If that be correct, that is an
appellable error and in our view the Appellant is entitled on appeal to point to that error as a
ground for appeal even though the Appellant did not wish to be heard on the question below.
The material which is said not to have been taken into account was relevant to establishing a
necessary jurisdictional fact. Ultimately the Commissioner had to be satisfied on the existence
of a particular state of affairs, and in considering whether he was so satisfied he was required
to take into account all of the relevant evidence which bears upon that question. The
Respondent made no concession on that question nor did it accept that the state of affairs
existed. In the circumstances, we are satisfied the Appellant should be permitted to argue on
appeal that the Commissioner did not take into account evidence, relevant to a jurisdictional
fact, which was before him that suggests that the Respondent had some extraneous purpose
for seeking the proposed enterprise agreement the subject of the PABO Application, and was
therefore in error.
[86] Our decision to allow the Appellant to raise a matter on appeal on which it did not
wish to be heard below, should not be read as giving a green light to parties that they need not
run their full case at first instance. A party acting in this way will do so at their own peril. We
do not condone the Appellant’s action. The Appellant could have, without taking a position
on “genuinely trying to reach an agreement”, assisted the Commissioner by pointing to
evidence, on which it now relies, which was suggestive of the Respondent not genuinely
trying to reach agreement. It did not do so. Without that assistance the Commissioner was left
in the invidious position of having before him unchallenged evidence and submissions from
53 Ibid
54 Ibid
[2014] FWCFB 1317
23
the Respondent that it was genuinely trying to reach an agreement and no submission on that
question from the Appellant.
[87] In J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia Lawler VP
and Bissett C gave consideration to evidentiary issues relevant to the question of genuinely
trying to reach agreement within the meaning of s.443(1)(b). Lawler VP and Bissett C said:
[62] In the ordinary course of events where an applicant for a protected ballot order calls (acceptable)
evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act, what
may be described as an evidentiary onus shifts to the party or parties opposing the application to
demonstrate why that evidence ought not be accepted sufficient to shift the evidentiary onus back to the
applicant
[63] In circumstances where an applicant for a protected ballot order calls (acceptable) evidence that their
intention, object or purpose is to reach an enterprise agreement under the FW Act a finding that the
applicant was not “genuinely trying to reach an [enterprise] agreement” within the meaning of s. 443(1)(b)
will necessarily involve accepting evidence establishing that the applicant had some other, extraneous
purpose in seeking the ballot. Indeed, when there is evidence from an applicant for a protected action ballot
order that they have been and are “genuinely trying to reach an [enterprise] agreement” under the FW Act,
it is difficult to conceive of circumstances where it could properly be found they were not, unless there is
cross-examination or other evidence establishing that the applicant in truth has some other, extraneous
intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act.
For example, the evidence may demonstrate that the applicant is pursuing an agreement that it knows or
ought reasonably knows would not be an enterprise agreement within the meaning of the FW Act because it
contains non-permitted matters contrary to s.172(1) or that the true motivation is to apply pressure in
pursuit of political or environmental goals or simply to punish the employer for some perceived wrong
doing.55
[88] The observations of the majority in J.J. Richards reproduced above should not be
taken as meaning any more than in the usual course of events when an applicant leads
relevant evidence on the question whether it is generally trying to reach an agreement, prima
facie, that will be sufficient to establish that fact. However the Commissioner had before him
not only evidence of Mr Tracey in which he asserted that the Respondent was genuinely
trying to reach an agreement, but also evidence noted in [76] above which raised serious
questions about the Respondent’s purpose in now seeking the proposed enterprise agreement
the subject of the PABO Application and whether the Respondent has been, and is, genuinely
trying to reach an agreement with the Appellant about the Respondent’s proposed enterprise
agreement.56
[89] The majority in J.J. Richards also said:
[58] The expression “genuinely trying” in s.443(1)(b) is, clearly enough, concerned with the genuineness of
the “trying”, the efforts, to reach the stated goal, namely an enterprise agreement that meets the
requirements of the FW Act. It is directed at the authenticity of the applicant’s efforts to reach that goal.
The genuineness or authenticity of an applicant’s efforts to reach that goal will turn on its motivation - the
intention, object or purpose.57
[90] In our view the Commissioner had before him evidence directed to the authenticity of
the Respondent’s efforts to reach agreement with the Appellant on the Respondent’s proposed
enterprise agreement the subject at the PABO Application. Some of that evidence was not
55 [2010] FWAFB 9963 at [62]-[63]
56 See the evidence at AB732.10-733.5 and AB734.10-735.1
57 [2010] FWAFB 9963 at [58]
[2014] FWCFB 1317
24
favourable to the Respondent. The Commissioner’s reasoning on the question of genuinely
trying to reach an agreement reproduced at [77] above does not indicate that he took that
evidence into account. Certainly there is no discussion in the Decision, which would indicate
that he took it into account. We note that there was some discussion between the
Commissioner and Ms Palmer about the Respondent’s motivation and genuinely trying to
reach agreement disclosed in the transcript58. However it is not evident on the face of the
Decision that the evidence was taken into account. It is not evident on the face of the Decision
how that evidence was dealt with by the Commissioner in arriving at his ultimate conclusion .
Apart from [44] of the Decision, which discloses the Commissioner’s conclusion, the bulk of
the reasoning concerns the application of s.438. Although the Commissioner notes that the
“respondent [Appellant] does not dispute”59 the Respondent has been, and is, genuinely trying
to reach an agreement with the Appellant, this does not relieve the Commissioner of the
obligation to take into account all relevant evidence which has a bearing on that question. The
Commissioner’s statement that “the evidence does demonstrate to my satisfaction that the
MUA has been, and is, genuinely trying to reach an agreement with Mermaid”60 does not,
with respect, demonstrate that he took into account relevant and important evidence tending to
show an extraneous purpose on the Respondent’s part.
[91] It seems to us that the Commissioner was, not unreasonably, influenced in his
conclusion, by the Appellant’s decision not to be heard on the question. This seems clear both
in the recital of facts in the “Background” of the Decision:
[11] Consequently on 25 November 2013 the MUA wrote to Mermaid’s representatives advising that it
was their claim that the work covered by the 2011 Gorgon Agreement should be excluded from the
scope of the agreement being negotiated.
[12] The response from AMMA on behalf of the vessel operators including Mermaid was that the
change in the scope of the agreement claimed by the MUA was in their view not consistent with good
faith bargaining and indicative that the MUA was not genuinely trying to reach agreement.
[13] In response the MUA further explained that the MUA’s changed position on scope of any
agreement simply reflected the legal position identified in the previous ballot order application and the
change was proposed as a logical solution consistent with the relationship between the 2010 Agreement
and the 2011 Gorgon Agreement.
[14] I note that in the proceedings of this matter Mermaid does not argue that the MUA has not been or
is not now genuinely trying to reach agreement. (Footnotes omitted)
[92] Further at [44] “The respondent does not dispute and the evidence does demonstrate to
my satisfaction that the MUA has been, and is, generally trying to reach an agreement with
Mermaid.” However, whatever may be said about the Appellant’s position on the question,
the Commissioner had to turn his mind to all of the evidence relevant to that question. The
decision does not disclose that he did this.
[93] The evidence of the Respondent’s change in its position on scope and of the
circumstances in which the change was brought about was suggestive of purpose or motive
that was all about avoiding the consequence of s. 438(1) and had very little to do with trying
to reach agreement with the Appellant on the Respondent’s proposed enterprise agreement
58 AB34-35; Transcript PN145 - PN151
59 AB16 at [44]
60 Ibid
[2014] FWCFB 1317
25
that was the subject of the PABO Application. The failure to take into account that evidence
is an appellable error61.
Submissions of AMMA
[94] In its submission before us, AMMA raised three substantive arguments, the second
and third of which dealt with the proper construction of the phrases “proposed enterprise
agreement” and “will be covered” and the operation of s.438.62 For the reasons given earlier
in this decision we do not accept those submissions as a basis of upholding the appeal.
[95] Much of the first argument is also directed to those matters. However, AMMA also
submits as part of its first argument that the Respondent does not have standing to make the
PABO Application because it is not a bargaining representative for the agreement proposed
by it. The Respondent objected to the receipt of the submission because it was not raised
below and did not arise from any of the Appellant’s ground of appeal63. We determined to
hear Counsel for AMMA on the question and to decide later what should be done with the
submission64. As the submission goes to the validity of the PABO Application made by the
Respondent and is an important question, we have decided to deal with that issue as part of
the appeal even though the Appellant has not raised it.
[96] AMMA’s submission is best encapsulated in the following exchange recorded in
transcript:
The relevant facts as he identified were that bargaining notices were provided in late December 2012 to
the 213 employees. As he identified, that was because Mermaid had agreed, or initiated, it doesn’t
matter, for bargaining for the agreement. We wish to additionally make the point that the process by
which the MUA became the default bargaining representative for the proposed enterprise agreement
was by operation of the Act. That is by section 176(1)(b). That is the scope of the proposed enterprise
agreement described in the notices allowed employees to appoint a bargaining representative, that is
each of the 213, or alternatively the Act operates so that relevantly, in this case, the MUA was
appointed as their bargaining representative for the proposed agreement, not on some other basis.
If one looks at the notice given to each of the employees and one looks at the Act, section 174
subsection (2), there is no other evidence available below to allow one to draw a conclusion that the
MUA was appointed on a default basis as a bargaining representative for those of the 213 employees
who are members of the MUA for the proposed enterprise agreement which is described in the notices
that each of them received. Now, the deputy president presiding asked my learned friend, “Well, you
don’t take issue with the certain points of principle, it’s just a question of facts.” We agree with that. It’s
just a question of fact as to what the proposed enterprise agreement was. As at the end of December
2012, two facts had been established.
DEPUTY PRESIDENT GOSTENCNIK: 2012?
MR WOOD: 2012.
DEPUTY PRESIDENT GOSTENCNIK: Just making sure.
61 See House v The King (1936) 55 CLR 499 at 504-505
62 See [24] - [26] and [27]-[30] of AMMA’s outline of submission
63 Transcript PN241-PN243
64 Transcript PN244
[2014] FWCFB 1317
26
MR WOOD: That’s when the notices of representational rights were provided. If I take the tribunal to
appeal book 189, you can see the notice. This is the one referred to at paragraph 23 of Mr O’Brien’s
statement. He says, “On 24 December 2012, Mermaid Marine issued the notice of employee
representational rights to the 213 employees.” It says, “Mermaid Marine gives notices that it is
bargaining in relation to an enterprise agreement,” describes the agreement, “which is proposed to cover
employees whose employment classifications are contained within what we call the general agreement.”
That is that’s how the 213 employees were identified.
Each of them were then told in the third paragraph of that notice, “You have a right to appoint a
bargaining representative to represent you in bargaining for the agreement or in a matter before Fair
Work Australia about bargaining for the agreement.” Then thirdly, third paragraph under that heading,
“If you’re a member of the union that’s entitled to represent your industrial interests,” relevantly the
MUA here, “in relation to the work to be performed under the agreement, your union will be your
bargaining representative for the agreement unless you appoint another person as your representative or
you revoke the union’s status as your representative.” There was no evidence below that the MUA was
appointed by any of the 213 employees.
DEPUTY PRESIDENT GOSTENCNIK: So this is a standing point. It didn’t have - it wasn’t a
bargaining representative for its proposed agreement?
MR WOOD: For it’s enterprise agreement, if everything - if you don’t accept what Mr Power says, that
there was only one proposed enterprise agreement, the converse must be made out. There was no
standing to apply for under 237.65
[97] We do not accept that the Respondent did not have standing to make the PABO
Application. The position of the Respondent as bargaining representative is not determined by
the NERR or after the NERR has been issued.66 For the reasons earlier discussed a bargaining
representative may make various applications under the Act before an NERR has been issued,
as is the case before an employer has agreed to bargain. The Respondent will, relevantly, be a
bargaining representative for a proposed enterprise agreement in the circumstances set out in
s.176(1). We see no reason to ascribe a different meaning to “proposed enterprise agreement”
in that section, to that which applies to the scheme under which the PABO Application was
made. It follows that the Respondent is a bargaining representative for employees of the
Appellant who “will be covered” by the Respondent’s proposed enterprise agreement who are
members of the Respondent and who have not appointed another bargaining representative or
revoked the status of the Respondent as that employee’s bargaining representative. It follows
that the Respondent had standing to make the PABO application.
Permission to appeal
[98] Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the
Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
65 Transcript PN232-PN240
66 See MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519 at [9]-[13]
[2014] FWCFB 1317
27
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC
is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see
section 400).
(3) A person may appeal the decision by applying to the FWC.
[99] The Explanatory Memorandum to what is now s.604 states:
2327. The concept of permission in the Bill is intended to replace the concept of leave currently in the
WR Act, using more modern terminology. Other than in the special case of subclause 604(2), the
grounds for granting permission to appeal are not specified. It is intended that this would call up all the
existing jurisprudence about granting leave to appeal – see e.g., Construction, Forestry, Mining and
Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200; and Wan v Australian
Industrial Relations Commission (2001) 116 FCR 481.
2328. Subject to the appellant demonstrating an arguable case of appealable error, it is intended that
FWA should have a broad discretion as to the circumstances in which it can grant permission to appeal.
Some examples of considerations which have traditionally been adopted in granting leave and which
would therefore usually be treated as justifying 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.
2329. However, subclause 604(2) requires FWA to grant permission to appeal the decision if FWA is
satisfied that it is in the public interest to do so.
[100] In Wan the Full Federal Court made the following observation regarding the operation
of s.45 of the then Workplace Relations Act 1996 (the WR Act), a statutory predecessor to
s.604:
Section 45 does not specify grounds for granting leave to appeal other than in the special case referred
to in s 45(2). As we have previously observed, grounds traditionally adopted in granting leave have
included considerations such as whether the decision is attended with sufficient doubt to warrant its
reconsideration and whether substantial injustice may result if leave is refused. These “grounds” should
not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances
which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to
grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an
appeal cannot succeed in the absence of appealable error.67
[101] Given the similarities between s.45 of the WR Act and s.604 of the Act the
observations in Wan remain apposite.
[102] The Appellant submits that it is in the public interest that permission to appeal be
granted because the appeal raises important questions about the proper interpretation and
application of s.443 and s.438 of the Act, and the operation of those provisions with other
provisions of the Act establishing the regime for enterprise bargaining and protected industrial
action. It says further that permission to appeal should be granted where, as here appellable
error is demonstrated or an arguable case of appealable error existed. The Respondent took a
contrary position.
67 (2001) 116 FCR 481 at [30]
[2014] FWCFB 1317
28
[103] As is apparent from our reasons we have concluded that there was an appellable error
at first instance. The error made was one that may well have affected the outcome of the
PABO Application. It is an error going to the establishment of a jurisdiction fact necessary
before an order under s.443 must be made. We are also satisfied that the appeal raised
important questions about the proper interpretation and application of s.438. It is therefore
appropriate to grant the Appellant permission to appeal.
Disposition of appeal
[104] We grant permission to appeal, dismiss the appeal in part (ground 1 to 5), uphold the
appeal in part (ground 6) and we quash the order made by Commissioner Williams in
PR546210.
[105] We remit the PABO Application to Commissioner Cloghan to determine whether the
Respondent has been, and is, genuinely trying to reach an agreement with the Appellant about
that proposed enterprise agreement within the meaning of s.443(1)(b) of the Act.
DEPUTY PRESIDENT
Appearances:
AJ. Power of Counsel for the Appellant
S.Wood S.C and T. Saunders of Counsel for AMMA
M. Ritter S.C and E. Palmer for the Respondent
Hearing details:
Perth.
2014
17 February.
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