1
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
AGL Loy Yang Pty Ltd T/A AGL Loy Yang
(B2016/58)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE
SYDNEY, 11 MAY 2016
Proposed protected action ballot of employees of AGL Loy Yang Pty Ltd; Full Bench referral
by President pursuant to s.615A(1) of the Fair Work Act 2009 (Cth); notification time
discussed; proposed enterprise agreement with multiple employers; whether there has been a
notification time in relation to the proposed agreement; application dismissed.
Introduction
[1] The Construction, Forestry, Mining and Energy Union (CFMEU) is a bargaining
representative of a number of employees of AGL Loy Yang Pty Ltd (AGL Loy Yang) who
will be covered by a proposed enterprise agreement. It has been bargaining with AGL Loy
Yang for an agreement for over six months. On 5 April 2016, the CFMEU applied for a
protected action ballot order (PABO) under s.437 of the Fair Work Act 2009 (Act). The group
of employees that are proposed to be balloted are employees of AGL Loy Yang who are
members of the CFMEU and for whom the CFMEU is a bargaining representative, and who
will be covered by the proposed enterprise agreement (relevant employees). On 6 April 2016,
the matter was referred to this Full Bench by the President of the Fair Work Commission
(Commission) pursuant to s.615A of the Act.
[2] At the time the CFMEU applied for a PABO, the subject of this application, it had
proposed an agreement that would cover all persons employed by AGL Loy Yang and AGL
Energy Limited (AGL Energy) or a related body corporate of AGL Energy, where the person
primarily performs work at, or that person’s roles and responsibilities are primarily associated
with, the Loy Yang A Power Station and/or Loy Yang Mine.1
[3] AGL Loy Yang opposes the grant of a PABO on several grounds including that the
CFMEU could not, on 5 April 2016, apply for a PABO because there has not been a
notification time in relation to the proposed enterprise agreement. We agree and we have
decided to dismiss the application. As we have concluded that there is not a valid application
for a PABO before the Commission, it is not necessary for us to decide the other matters
1 Exhibit 6, Annexure GH88.
[2016] FWCFB 2878
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 2878
2
argued before us and we decline to do so. These are our reasons for dismissing the
application.
Background
[4] The relevant employees of AGL Loy Yang are currently covered by the Loy Yang
Power Enterprise Agreement 2012 which has now passed its nominal expiry date.2 The
agreement also covers AGL Loy Yang and several unions, including the CFMEU. AGL Loy
Yang commenced engaging with its employees about enterprise bargaining in late April
2015.3 In early July 2015, AGL Loy Yang invited the CFMEU to a meeting to be held on 23
July 2015 for the purpose of commencing enterprise bargaining discussions with the CFMEU
and other unions.4 At that time, the CFMEU declined to commence bargaining with AGL Loy
Yang for reasons that are not presently relevant.5
[5] The 23 July 2015 meeting proceeded with representatives AGL Loy Yang and various
unions in attendance, but not CFMEU.6 On 28 July 2015, AGL Loy Yang issued to
employees a notice of employee representational rights.7
[6] By letter dated 28 September 2015, the CFMEU wrote to AGL Loy Yang, in which it
purported to initiate bargaining with AGL Loy Yang for an enterprise agreement.8 Following
this correspondence, the CFMEU attended some bargaining meetings with AGL Loy Yang
and other unions, and held a meeting of its delegates to formulate its claims for bargaining.9
During a bargaining meeting held on 28 October 2015, the CFMEU proposed and tabled two
documents, a draft agreement and claims, each of which, on their face, propose an agreement
that would cover employees of AGL Loy Yang.10
[7] Thereafter, several bargaining meetings between AGL Loy Yang and the various
unions, including the CFMEU, took place, and various correspondence about bargaining
passed between AGL Loy Yang and the CFMEU.11 The collection of unions representing
some of the employees who will be covered by the proposed agreement is described as the
single bargaining unit (SBU). It appears that since at least 28 October 2015, the SBU, which
includes the CFMEU, has endorsed the claims for a proposed agreement being pursued by the
CFMEU.12
[8] On 8 February 2016, the CFMEU through Mr Gregory Thomas Hardy, the Loy Yang
A Power Station Lodge Secretary of the Victorian District Branch of the Mining and Energy
Division of the CFMEU, sent to AGL Loy Yang that which was described by Mr Hardy as the
“latest draft of the SBU proposed agreement”.13 That proposed agreement is titled “AGL Loy
Yang Enterprise Agreement 2016”14 and clause 2 of that document contains the following:
2 The nominal expiry date is 31 December 2015.
3 Exhibit 6 at [7].
4 Ibid at [8].
5 Ibid at [8] – [9].
6 Ibid at [11].
7 Ibid at [12], Annexure GH9.
8 Ibid at [27], Annexure GH33.
9 Ibid at [32] – [34].
10 Ibid at [35], Annexures GH42 and GH43.
11 Ibid at [36] – [58].
12 Ibid at [35], [59].
13 Ibid at [59].
14 Ibid at AnnexureGH 88.
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“Application of Agreement
This Agreement shall cover all persons employed by:
AGL Loy Yang Pty Ltd (ABN 62 077 985 758); or
AGL Energy Limited (ABN 74 115 061 375) or a related body corporate where that person
primarily performs work at the Loy Yang A Power Station and/or Loy Yang Mine workplaces;
or
AGL Energy Limited (ABN 74 115 061 375) or a related body corporate where that person’s
roles and responsibilities are primarily associated with Loy Yang A Power Station and/or Loy
Yang Mine;
. . .”15
[9] The CFMEU’s claim for a proposed agreement which contained an application or
coverage clause in the terms set out above persisted until 12 April 2016.16
[10] It is not in dispute that neither AGL Energy nor any related body corporate of AGL
Energy has initiated or agreed to bargain for a proposed agreement. Nor is it said that there is
in operation a scope order, a majority support determination or a low-paid authorisation in
relation to the proposed agreement covering AGL Energy or any related body corporate.
[11] The CFMEU first made an application for a PABO on 21 March 2016 (first
application). In that application as subsequently amended, the group of employees that were
to be balloted was identified as employees of AGL Loy Yang or AGL Energy who were
members of the CFMEU and for whom the CFMEU is a bargaining representative, and who
will be covered by the proposed enterprise agreement.17
[12] Both AGL Loy Yang and AGL Energy opposed the first application on several
grounds, including that there was no notification time for the proposed agreement. The first
application was referred to this Full Bench by the President pursuant to s.615A of the Act.
Subsequently, the CFMEU sought to further amend the first application by altering the
identity of the group of employees to be balloted so as to limit that group to employees of
AGL Loy Yang who are members of the CFMEU for whom the CFMEU is a bargaining
representative, and who will be covered by the proposed agreement. The proposed
amendment was opposed and the CFMEU ultimately discontinued the first application on 5
April 2016, advising it had come to its attention that s.440(b) of the Act had not been satisfied
because it had failed to give a copy of the first application to the Australian Electoral
Commission (AEC).
Legislative Scheme and competing contentions
[13] The legislative provisions that regulate the making of a PABO and the conduct of any
resulting ballot are set out in Part 3-3, Division 8 of the Act. Section 437 of the Act sets out
who may apply for a PABO:
15 Ibid.
16 Exhibit 8 at [47], Annexure GH126.
17 See application B2016/384.
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“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) 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 the FWC 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.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the
proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be
taken until after bargaining has commenced (including where the scope of the
proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted,
including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral
Commission to be the protected action ballot agent for the protected action ballot, the
application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission
unless the FWC specifies another person in the protected action ballot order as
the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only
employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for
the protected action ballot order; or
[2016] FWCFB 2878
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(ii) are bargaining representatives for themselves but are members of an
employee organisation that is an applicant for the protected action
ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information
prescribed by the regulations.”
[14] That the CFMEU is a bargaining representative for the proposed agreement of at least
some of the employees who will be covered by the proposed agreement is not in dispute, nor
is the fact that the current application sets out the group of employees to be balloted, namely
employees of AGL Loy Yang who are members of the CFMEU and for whom the CFMEU is
a bargaining representative, and who will be covered by the proposed agreement.18
[15] The questions to be put to the employees have been specified, including the nature of
the proposed industrial action,19 and the CFMEU has opted for the default arrangement
whereby the AEC is to be the ballot agent.20
[16] It is also not in dispute that the nominal expiry date of the current agreement has
passed21 or that the CFMEU served a copy of its application on AGL Loy Yang and the AEC
within 24 hours of making the application.22
[17] A protected action ballot order may only be made in the circumstances outlined in
s.443 of the Act. We must issue a PABO, if we are satisfied that:
(a) there has been an application made under s.437;23 and
(b) the CFMEU has been and is genuinely trying to reach an agreement with the
employer of the employees who are to be balloted.24
[18] As earlier indicated, AGL Loy Yang opposes the making of a PABO and submits that
the Commission does not have jurisdiction to issue the proposed PABO because:
(a) the application does not satisfy the jurisdictional prerequisite at s.437(2A) of the
Act as there has not been a notification time in relation to the proposed enterprise
agreement; and
(b) the Commission ought not be satisfied that the CFMEU has been and is genuinely
trying to reach an agreement as required by s.443(1)(b) of the Act.
18 Section 437(3)(a).
19 Section 437(3)(b).
20 Section 440(b).
21 Section 438(1).
22 Section 440.
23 Section 443(1)(a).
24 Section 443(1)(b).
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Consideration
Has there been a notification time in relation to the proposed agreement?
[19] As outlined above, s.437(2A) of the Act is accompanied by a legislative note which
points to s.173(2) of the Act for the definition of “notification time”:
“Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken
until after bargaining has commenced (including where the scope of the proposed enterprise
agreement is the only matter in dispute).”
[20] Relevantly, s.173(2)(a) provides that the notification time for a proposed enterprise
agreement is the time when the employer agrees to bargain, or initiates bargaining, for the
agreement.
[21] AGL Loy Yang contends that s.437(2A) is a jurisdictional prerequisite to an
application for a PABO, with the effect that a bargaining representative cannot apply for a
PABO “unless there has been a notification time in relation to the proposed agreement”.
[22] AGL Loy Yang’s submissions addressed the proposition that there has not been a
“notification time” for the proposed agreement covering AGL Energy and related bodies
corporate. In summary, AGL Loy Yang submitted:
a) On the plain words of s.437(2A) and s.173(2), there has been no notification time in
relation to the proposed enterprise agreement as the employer (presumably AGL
Energy and the related bodies corporate – even assuming they are employers) has
not agreed to bargain or initiated bargaining for the proposed agreement.
b) In interpreting the meaning of s.437(2A) of the FW Act, the interpretation that
would best achieve the purpose or object of the FW Act (whether or not that
purpose or object is expressly stated in the FW Act) is to be preferred to each other
interpretation.25 The Commission can have regard to extrinsic materials,26 such the
Explanatory Memorandum to the Fair Work (Amendment) Bill 201427 (which
ultimately became the 2015 Amendment Act) and the Report of the Fair Work
Review Panel.28
c) The Explanatory Memorandum notes the Fair Work Review Panel recommended
that the Act be amended so that an application for a protected action ballot order
may only be made when bargaining for a proposed agreement has commenced,
either voluntarily or because a majority support determination has been obtained
(recommendation 31). It also recommended that the Act expressly provide that
bargaining has commenced for this purpose despite any disagreement over the
scope of the agreement (recommendation 31). The amendment implements this
recommendation by including a legislative note to make clear that disagreement
over the scope of a proposed enterprise agreement does not, of itself, prevent the
taking of protected industrial action.’
25 Acts Interpretation Act 1901, s15AA.
26 Acts Interpretation Act 1901, s15AB.
27 Explanatory Memorandum to the Fair Work (Amendment) Bill 2014 at [145]-[146].
28 Report of the Fair Work Review Panel, Towards more productive and equitable workplaces – an evaluation of the Fair
Work legislation, 2014.
[2016] FWCFB 2878
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d) The relevant passages of the Report of the Fair Work Review Panel are in section
7.2 on pages 175-177. After setting out that as the law stood a bargaining
representative could utilise protected industrial action under the FW Act to
persuade the unwilling employer to “come to the table”, the Panel stated:
“We share the views of the Full Court. While the law is now settled, we do not think
this is the appropriate outcome from a policy perspective. Given the legislature has
sought to codify the circumstances in which an employer can be positively required to
bargain, we consider it incongruous for industrial action to be available to bring
pressure to bear on an employer to bargain outside of those circumstances. The
mechanism to compel bargaining under the good faith bargaining provisions, a
majority support determination, requires the support of a majority of the employees to
be covered by a proposed agreement. In contrast, industrial action can be taken by a
minority of employees to be covered by a proposed enterprise agreement. Viewed this
way, the capacity for protected industrial action to be taken to persuade an unwilling
employer to bargain tends to undermine the majority support determination
provisions, and represents a clear ‘disconnect’ with the new bargaining regime in the
FW Act. However, to allay any doubt, we consider the scope of a proposed enterprise
agreement to be a legitimate matter for bargaining. In our view, bargaining for a
proposed enterprise agreement can commence whether the scope of the proposed
agreement has been agreed or not. Our view is consistent with that of the Full Bench
in both Stuartholme and MSS Security and contrary to the view of the Full Bench in
Ford. The absence of agreement about scope should not preclude the taking of
protected industrial action.
Recommendation 31: The Panel recommends that Division 8 of Part 3-3 be
amended to provide that an application for a protected action ballot order may
only be made when bargaining for a proposed agreement has commenced,
either voluntarily or because a majority support determination has been
obtained. The Panel further recommends that the FW Act expressly provide
that bargaining has commenced for this purpose despite any disagreement
over the scope of the agreement.”29
e) Properly construed, the words of the relevant provisions understood against this
context result in the construction advanced by AGL Loy Yang.
[23] AGL Loy Yang relied on the following factual matters which it submitted were
relevant in assessing whether the application made by the CFMEU on 5 April 2016 satisfied
the s.437(2A) jurisdictional prerequisite:
a) a notice of employee representational rights directed at employees of AGL Loy Yang
was provided by AGL Loy Yang on 29 July 2015;30
b) bargaining then took place between the CFMEU and AGL Loy Yang regarding those
employees and on or around 28 October 2015, the proposed CFMEU agreement31 had
AGL Loy Yang as the employer;
29 Report of the Fair Work Review Panel, Towards more productive and equitable workplace – an evaluation of the Fair
Work legislation, 2014 at p.176.
30 Exhibit 6, Annexure GH9.
31 Ibid, Annexure GH42.
[2016] FWCFB 2878
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c) on 18 November 2015, the CFMEU sent a letter to AGL Loy Yang32 advising of a
proposed application for clause 2 to cover AGL Loy Yang, AGL Energy or related
bodies corporate;
d) this was reflected in a further draft of the CFMEU’s proposed agreement of 5 January
2016;33 and
e) that claim remained the position of the CFMEU at the time the current application
was filed on 5 April 2016.
[24] AGL Loy Yang submitted that the compound phrase in s.437(2A) must be read as a
whole: “a notification time in relation to the proposed agreement” and it is not enough for
there just to have been one notification time relating to AGL Loy Yang. The evidence of
Michael Clinch, AGL Loy Yang’s Manager – Group Employee Relations, was that there had
been no bargaining or agreement to bargain on the part of AGL Energy or related bodies
corporate and nor had those companies initiated or agreed to initiate bargaining.34
[25] AGL Loy Yang also submitted that the cases referred to in the Explanatory
Memorandum and Report of the Fair Work Review Panel (Stuartholme v Independent
Education Union35 and MSS Security v LHMU36) do not stand for the proposition that a
PABO can be used to force the unwilling employer to the bargaining table, as such a
proposition is directly contrary to the clearly expressed language and purpose of s.437(2A).
[26] AGL Loy Yang submitted that, as there was no agreement by AGL Energy or related
bodies corporate to bargain, there had been no notification time for the proposed agreement.
As there had been no notification time, as required by s.437(2A) of the Act, the application
was a nullity when filed on 5 April 2016.
[27] It further submitted that the subsequent letter of the CFMEU dated 12 April 201637 did
not make an invalid application valid. AGL Loy Yang’s position was, therefore, that
s.437(2A) prevented a valid application under s.437(1) being made by the CFMEU on 5 April
2016 and, because the jurisdictional prerequisite in s.443(1)(a) is not met, a PABO must not
be made.38
[28] AGL Loy Yang also submitted that the words “may apply” in s.437(2A) are to be read
as meaning the lodging of the written application.39
[29] It does not appear that the CFMEU disputes the factual matters advanced by AGL Loy
Yang, summarised above. The CFMEU did not seek to press its written submissions dated 5
April 201640 relating to s.437(2A), and approached the question of whether its application
made on 5 April 2016 satisfied the s.437(2A) jurisdictional prerequisite as a matter of
statutory construction.
32 Ibid, Annexure GH58.
33 Ibid, AnnexureGH76.
34 Exhibit 1at [24].
35 [2010] FWAFB 1714.
36 [2010] FWAFB 6519.
37 Exhibit 8, Annexure GH126.
38 Respondent’s Submissions dated 29 March 2016 at [24].
39 Transcript PN1304.
40 CFMEU Submissions dated 14 April 2016 at paragraph 8 and Transcript PN1091.
[2016] FWCFB 2878
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[30] The CFMEU’s submission were as follows:
a) The Commission must construe the meaning of ss.437(1) and 437(2A) in a manner
that is consistent with the language and purpose of the Act and all of its provisions,41
as per Project Blue Sky Inc v Australian Broadcasting Authority; 42
b) The process of construction starts with the text as per Alcan (NT) Alumina Pty Ltd v
Commissioner of Territory Revenue (Northern Territory))43 and then, if necessary the
context which includes the general purpose and policy and the “mischief” that it is
seeking to remedy;44
c) It is open to interpret “may apply” in s.437(1) of the Act as referring to the time at
which the hearing is held and the applicant makes its application to the Bench45 and up
to the point of the determination of the application.46
d) The preferable construction is not the point in time where a form is lodged with the
Commission registry but to construe it as the process of making the application,
including the hearing.47
e) The decision of the Full Bench in Coles Supermarkets (Australia) Pty Ltd v The
Australian Meat Industry Employees Union48, while dealing with s.443(1)(b)
nonetheless provides guidance and support for the proposition that the Commission is
not restricted to looking at the time an application was filed.49
f) Relying on Maritime Union of Australia v Maersk Crewing Australia Pty Ltd,50 there
was a notification time in relation the agreement the CFMEU was seeking to negotiate
because one employer, AGL Loy Yang, had agreed to bargain.51
g) Bearing in mind that the legislative purpose behind s.437(2A) is to prevent employees
from taking strike action to pressure employers to agree to bargaining, the granting of
the PABO could not lead to strike action being taken to pressure AGL Energy to
bargain.52
[31] It seems to us, for present purposes the question of the validity of the application for a
PABO made by the CFMEU, may be determined by considering whether, on 5 April 2016,
s.437 permitted the CFMEU to apply to the Commission for an order. The answer to this
question depends in turn on first identifying the proposed enterprise agreement in relation to
which a protected action ballot would be conducted to determine whether employees wish to
41 Transcript PN1174.
42 (1998) 194 CLR 355.
43 (2009) 239 CLR 27.
44 Transcript PN1174.
45 Transcript PN1175.
46 Transcript PN1194.
47 Transcript PN1179.
48 [2015] FWCFB 379 at [48]-[50].
49 Transcript PN1186.
50 [2016]FWCFB 1894.
51 Transcript PN1204 and PN1209.
52 Transcript PN1215.
[2016] FWCFB 2878
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engage in particular industrial action for the agreement. Secondly, the answer depends on
whether there has been a notification time in relation to the proposed enterprise agreement.
[32] As to the first task, a Full Bench of this Commission in Maersk53 observed as follows:
“[12] Subsection 437(1) provides that a bargaining representative of an employee who will
be covered by ‘a proposed enterprise agreement’ may apply to the Commission for a PABO.
Subsection 443(1)(a) requires an application to have been made under s.437 in order for the
Commission to be empowered to make a PABO.
[13] The proper construction of the expression ‘a proposed enterprise agreement’ in
s.437(1) was considered by a Full Bench of the Commission in Mermaid Marine Vessel
Operations Pty Ltd v The Maritime Union of Australia (Mermaid Marine) as follows:
‘[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”, and its
reference to the decision in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals,
Engineering, Printing and Kindred Union (No 2) 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”. 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…
[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.’ (footnotes
omitted)
[14] The views expressed in Mermaid Marine were subsequently endorsed by the Full
Bench in Skilled Offshore Pty Ltd v AMWU and others (Skilled Offshore).
[15] Mermaid Marine and Skilled Offshore stand for the proposition that all that is required
for there to be ‘a proposed enterprise agreement’ within the meaning of ss.437(1) and 443(1)
of the FW Act is an ‘agreement [which] the bargaining representative applying for an order
under [s.437] is proposing at the time the application for a protected action ballot order is
made’. Further, in MUA v Swire Pacific Ship Management (Australia) Pty Ltd (Swire) the Full
Bench characterised a ‘proposed enterprise agreement’ as something that one of the parties
53 [2016] FWCFB 1894.
[2016] FWCFB 2878
11
wants to negotiate: ‘There need not be a developed draft, and it may simply be an idea or a
series of claims…’ While Mermaid Marine, Skilled Offshore, and Swire were all decided
before the commencement of s.437(2A), we are not persuaded that the introduction of
s.437(2A) affects the reasoning in those cases in respect of this issue.
[16] We should also add that the decision in Mermaid Marine should not be taken as
suggesting that an application under s.437(1) of the FW Act may only be made in relation to
an agreement proposed by a PABO applicant. Mermaid Marine was concerned with resolving
a contention that because the scope of the agreement proposed by the employer covered
employees who were also covered by an operative enterprise agreement whose nominal expiry
date had not yet passed and was not due to pass for some significant period, the PABO
applicant was prevented, by reason of s.438(1), from making the application. However the
PABO applicant in Mermaid Marine was proposing an agreement which was narrower in
scope than the agreement proposed by the employer covering only those employees who were
not otherwise covered by the operative enterprise agreement. It is in that context that
paragraph [46] in Mermaid Marine is to be understood.”54 [Endnotes omitted]
[33] In this case, identifying the proposed enterprise agreement is not difficult. As at 5
April 2016, the proposed agreement was that which was attached to the witness statement of
Mr Hardy as Annexure GH 88. The proposed agreement contains an application or coverage
provision which seeks that the proposed agreement cover employers (and their employees)
other than AGL Loy Yang. That this was the case when the CFMEU applied under s.437 of
the Act is uncontroversial. That the CFMEU subsequently, on 12 April 2016, changed its
position on the application or coverage of the proposed enterprise agreement it sought so as to
limit it to employees of AGL Loy Yang, does not change the fact that when it applied for a
PABO on 5 April 2016, it sought and proposed an agreement not only with AGL Loy Yang
but also with AGL Energy and unidentified related bodies corporate of AGL Energy.
[34] The Full Bench in Maersk gave detailed consideration to the meaning and evident
statutory purpose of s.437(2A) of the Act.55 In summary, the legislative purpose in the
enactment of s.437(2A) is to ensure that protected industrial action cannot be taken until after
bargaining has commenced, that is, after the time when the employer agrees to bargain, or
initiates bargaining or one of the other circumstances constituting the “notification time”
applies.56 We adopt the analysis in Maersk but note that the factual matrix in Maersk was
significantly different to that which confronts the Full Bench of this case.
[35] The effect of s.437(2A) of the Act is to prevent a bargaining representative for a
proposed agreement from making an application for a PABO unless there has been a
notification time in relation to the proposed enterprise agreement.
[36] It is plainly the case that two or more employers may make an enterprise agreement
which is a single enterprise agreement where those employers are single interest employers.57
Two or more employers are single interest employers if, relevantly, the employers are
engaged in a joint venture or common enterprise, or the employers are related bodies
corporate.58 There is no dispute that AGL Loy Yang and AGL Energy (and it would follow
related bodies corporate of AGL Energy) are related bodies corporate.
54 Ibid at [12] – [16].
55 Ibid at [19] – [54].
56 Ibid at [26].
57 See s.172(2).
58 See s.172(5).
[2016] FWCFB 2878
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[37] Single interest employers that propose to make an enterprise agreement as a single
enterprise agreement are not, under the Act, treated as one employer. This is to be contrasted
with the position under the Workplace Relations Act 1996 where for the purposes of making a
workplace agreement, two or more employers carrying on a business, project or undertaking
as a joint venture or common enterprise, or two or more corporations that were related to each
other for the purposes of the Corporations Act 2001 each carrying on a single business, are
respectively to be taken to be one employer and in the case of the latter, the single businesses
conducted by the related corporations could be treated as one single business.59
[38] As under the Act, single interest employers are not treated as one employer, it follows
that in the case of a proposed enterprise agreement with two or more employers who are
single interest employers, that the trigger for a notification time for that proposed agreement is
the time when each employer has agreed to bargain or initiates bargaining. To conclude
otherwise, at least since the enactment of s.437(2A) of the Act, would have the effect of
undermining the evident legislative purpose of that section. A conclusion that there has been a
notification time in relation to a proposed agreement that would cover single interest
employers when only one employer has agreed to bargain or initiated bargaining, would in
effect permit the making of a PABO, and if the ensuing ballot approved the taking of
protected industrial action for the proposed agreement, would permit taking protected
industrial action in circumstances where bargaining with an employer who would be covered
by the proposed agreement had not begun. Such a construction should be rejected.
[39] We do not accept the construction of s.437 advanced by the CFMEU. The question of
whether a bargaining representative “may apply” is, in our view, to be determined at the time
that such an application is made rather than having regard to the possibility that
circumstances, which existed at the time the application was made which would prevent the
application, might change during the hearing or indeed prior to a decision as to whether a
PABO is made. The construction for which the CFMEU contends is contrary to the clear
words of s.437(1) read in the context of the section as a whole and the other provisions of
Division 8 of Part 3–3, Chapter 3 of the Act and would render for example the operation of
s.441(1), which requires the Commission to determine a PABO application within two
working days after the application is made, uncertain.
[40] Moreover, we reject the submission advanced by the CFMEU to the effect that
although s.437(2A) is aimed at remedying the “strike first talk later” approach to bargaining,
it does not prevent an application being made for a PABO until bargaining has commenced.60
As we have already indicated, s.437(2A) prevents an application for a PABO by a bargaining
representative being made, unless there is a notification time in relation to the proposed
agreement. The scheme of the Act marks out the “notification time” as the time at which, for
present purposes, bargaining has commenced, (noting that if a scope order is made after
bargaining has commenced in circumstances where scope is in issue in bargaining, this would
trigger another notification time and its attendant consequences).
[41] The Parliament had available to it a number of options to give effect to the legislative
purpose which underpins s.437(2A). In order to prevent protected industrial action being
taken before bargaining has begun, the Parliament could have amended s.443(1) by adding,
for example, a subparagraph (c) to the effect that the Commission “is satisfied that there is a
notification time in relation to the proposed agreement”. It could have amended s.413 by
59 See s.322(2) of the Workplace Relations Act 1996.
60 Transcript PN1176 – PN1177.
[2016] FWCFB 2878
13
including a new subsection (2A) which was to the effect that “the industrial action must relate
to a proposed enterprise agreement in relation to which there has been a notification time”. In
either case, such an amendment would not preclude an application for a PABO being made
before bargaining for an agreement had begun.
[42] However, the Parliament elected to remove the capacity of a bargaining representative
to apply for a PABO unless there has been a notification time in relation to the proposed
enterprise agreement. The amendment gives effect to the legislative purpose removing the
“strike first talk later issue” by taking away the capacity of a bargaining representative to
apply for a PABO unless there has been a notification time in relation to the proposed
agreement.
[43] That the CFMEU was proposing an agreement with more than one employer at the
time that it applied for a PABO in circumstances where one of the employers had not agreed
to or initiated bargaining, seems to us therefore to be fatal to the application. The CFMEU
was not, on 5 April 2016, able to apply under s.437(1). That the CFMEU later changed its
position in relation to the application or coverage of the proposed agreement does not change
the fact that when it applied, it was not permitted by reason of s.437(2A) of the Act to do so.
The purported application it made was not a valid one.
Conclusion
[44] The application for a PABO made by the CFMEU on 5 April 2016 is dismissed. An
order giving effect to this decision is separately issued in PR580142.
DEPUTY PRESIDENT
Appearances:
Mr Y Bakri of Counsel for the Construction, Forestry, Mining and Energy Union.
Mr F Parry QC and Mr B Avallone of Counsel for AGL Loy Yang Pty Ltd.
Hearing details:
2016.
Melbourne.
21 April.
29 April.
Further written submissions:
Applicant, 2 May 2016.
Respondent, 3 May 2016.
Printed by authority of the Commonwealth Government Printer
Price code C, PR580122
WORK COMMISSION THE SEAL OF
