1
Fair Work Act 2009
s.604 - Appeal of decisions
Groote Eylandt Mining Company Pty Ltd T/A South32 GEMCO
v
Construction, Forestry, Mining and Energy Union
(C2016/2755)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC
COMMISSIONER ROE MELBOURNE, 3 MAY 2016
Appeal against decision [[2016] FWCA 792] of Commissioner Gregory at Melbourne on
5 February 2016 in matter number AG2015/7568 – Permission to appeal granted – Appeal
dismissed.
[1] This is an appeal by Groote Eylandt Mining Company Pty Ltd T/a South 32 GEMCO
(GEMCO) in relation to a decision by Commissioner Gregory of 5 February 20161 in which
the Commissioner approved the Groote Eylandt Mining Company Enterprise Bargaining
Agreement 2015 (the Agreement). Specifically, the appeal is against the inclusion in the
decision of a note in paragraph 3, in accordance with s.201(2) of the Fair Work Act 2009 (the
Act), that the Agreement covers the “Construction, Forestry, Mining and Energy Union” (the
CFMEU).
[2] Paragraph 3 of Commissioner Gregory’s decision states:
“[3] The ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union’ known as the Australian Manufacturing Workers’ Union (AMWU), the
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia, the United Voice, the Maritime Union of Australia,
the Transport Workers’ Union of Australia, and the Construction, Forestry, Mining and
Energy Union being bargaining representatives for the Agreement, have given notice
under s.183 of the Act that they want the Agreement to cover them. In accordance with
s.201(2) I note that the Agreement covers the organisations.”
[3] GEMCO submitted that Commissioner Gregory erred by including “the Construction,
Forestry, Mining and Energy Union” in paragraph 3 of his decision on the basis that the
CFMEU did not give GEMCO, as the employer covered by the Agreement, a copy of the
written notice stating that the CFMEU wanted the Agreement to cover it before the
Agreement was approved by the Commissioner, having regard to the Full Bench authority in
RotoMetrics Australia Pty Ltd v Australian Manufacturing Workers’ Union (RotoMetrics).2
[2016] FWCFB 2432
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 2432
2
[4] The appeal was opposed by the CFMEU. The “Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing
Workers’ Union (AMWU) (the AMWU) and the Maritime Union of Australia (MUA)
supported the submissions of the CFMEU.
Relevant Statutory Provisions
[5] Section 183 of the Act provides an entitlement for an employee organisation to be
covered by an enterprise agreement where certain preconditions are met. Section 183
provides:
“(1) After an enterprise agreement that is not a greenfields agreement is made, an
employee organisation that was a bargaining representative for the proposed enterprise
agreement concerned may give the FWC a written notice stating that the organisation
wants the enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer
covered by the enterprise agreement, before the FWC approves the agreement.”
[6] On its face, s.183(1) of the Act requires that the Fair Work Commission (the
Commission) be satisfied that:
The employee organisation was a bargaining representative for the proposed
enterprise agreement; and
The employee organisation gave the Commission written notice stating that the
organisation wants the enterprise agreement to cover it.
[7] On its face, s.183(2) of the Act requires that:
The written notice to the Commission in s.183(1) is given before the Commission
approves the agreement; and
A copy of the written notice to the Commission in s.183(1) is given to each
employer covered by the enterprise agreement before the Commission approves
the agreement.
[8] Section 53(2)(a) of the Act provides that:
“An enterprise agreement covers an employee organisation:
(a) for an enterprise agreement that is not a greenfields agreement—if the
[Commission] has noted in its decision to approve the agreement that the
agreement covers the organisation [under s.201(2) of the Act].”
[9] Section 53(3) sets out other possible basis for coverage of an employee organisation,
none of which arise in the circumstances of the current matter.
[2016] FWCFB 2432
3
[10] Relevantly for present purposes, s.176(1)(b) includes as a bargaining representative for
a proposed a non-greenfields enterprise agreement an employee organisation which is a
bargaining representative of an employee who will be covered by the agreement if the
employee is a member of the organisation.3
[11] Section 201 of the Act requires that a decision approving an enterprise agreement must
note certain matters. Relevantly, s.201(2) provides:
“If:
(a) an employee organisation has given a notice under subsection 183(1) that the
organisation wants the enterprise agreement to cover it; and
(b) the FWC approves the agreement;
the FWC must note in its decision to approve the agreement that the agreement covers
the organisation.”
[12] On its face, the requirement to include a note that an employee organisation (which by
reference to s.183(1) of the Act) is a bargaining representative in relation to the enterprise
agreement, arises if the organisation has given the Commission written notice under s.183(1)
and the agreement is approved.
[13] The appeal raises a question as to the relevance of s.183(2) to the discharge by the
Commission of the requirement in s.201, to note that an organisation which is a bargaining
representative within the meaning of s.176(1)(b) of the Act is covered by the agreement. In
particular it raises the questions of whether the reference to s.183(1) in s.201(2)(a) should be
construed as a reference to s.183 as a whole, by incorporating s.183(2) of the Act and the
proper characterisation of s.183(2).
[14] A note in the decision in accordance with s.201(2) is of some significance because
s.53(2)(a) of the Act provides that an enterprise agreement covers an employee organisation if
the Commission has “noted in its decision to approve the agreement that the agreement covers
the organisation”. Certain rights arise in the Act for an organisation covered by an agreement.
For example, an “employee organisation that is covered by an agreement would be able to
enforce the agreement to ensure that the employer is meeting its obligations”.4
The Approval Process
[15] The Agreement was approved by Commissioner Gregory on the papers, with support
from the Commission’s Member Support Research Team (Support Team), following the
listing of the application for eHearing on 5 February 2016, without an attendance hearing.
[16] The Commission’s Case Management System records disclose the following relevant
events:
On 8 December 2015, an application for approval of the Agreement was lodged
in the Commission by GEMCO.
On 16 December 2015, the CFMEU emailed the Support Team and requested a
copy of the relevant documentation filed by GEMCO.5
[2016] FWCFB 2432
4
On 6 January 2016, the Support Team emailed the CFMEU seeking confirmation
that the CFMEU was a bargaining representative in the matter.6
On 6 January 2016, the CFMEU responded, confirming it was a bargaining
representative.7
On 7 January 2016, the Support Team emailed GEMCO requesting its views in
relation to the CFMEU’s request of 16 December 2015.8
On 8 January 2016, GEMCO responded, objecting to the CFMEU receiving
copies of any document filed by it with the Commission in relation to the
approval of the Agreement, “and to the CFMEU being covered by the
Agreement, on the basis that it has not established . . . that it is a bargaining
representative for the Agreement”.9
On 11 January 2016, the Support Team emailed the CFMEU (c.c. GEMCO)
advising that GEMCO “has indicated that the CFMEU was not a bargaining
representative during the bargaining process and has objected to the CFMEU
receiving any documentation”. It advised that if the “CFMEU still wishes to
proceed in providing a response to this matter, can you please inform the
undersigned as soon as possible and the matter will be listed for attendance
hearing”.10
On 12 January 2016, the CFMEU responded, advising it wanted to be involved in
the matter and asked if it would it be “helpful if we provided the Commission
with an F18”.
On 13 January 2016, Commissioner Gregory emailed the CFMEU (c.c. GEMCO)
in relation to its 16 December 2015 request for documentation, advising that
GEMCO objected to the provision of the documentation. He advised that “if you
wish to continue to seek to have the Agreement cover the CFMEU, on the basis
that it is a bargaining representative, then I will list the matter for hearing to
determine this issue”.11
On 15 January 2016, GEMCO emailed the Commissioner advising it would “not
oppose the CFMEU’s request” for the information sought and would be content
for the CFMEU to substantiate its position as a bargaining representative on a
confidential basis to the Commission.12
On 15 January 2016, the CFMEU emailed Commissioner Gregory, referring to
discussions on that day and provided a list of members on a confidential basis for
the purpose of the Commission to ascertain whether the CFMEU was in fact a
bargaining representative in relation to the proposed Agreement.
On 21 January 2016, GEMCO emailed Commissioner Gregory seeking “an
update as to the status of the CFMEU’s response and the next steps of the
approval process”.13
On 22 January 2016, the Commissioner emailed GEMCO advising that he had
received a list of members from the CFMEU and requested GEMCO provide a
list of employees.14
On 27 January 2016, GEMCO emailed Commissioner Gregory the requested list
of employees.15
On 28 January 2016, the Commissioner emailed GEMCO advising that
employees identified by the CFMEU also appear on the list of names that
GEMCO supplied. The Commissioner requested advice in relation to GEMCO’s
“position in response and, in particular, whether you would continue to oppose
any subsequent request by the CFMEU to be covered by the Agreement”. He
advised that he expected “that the CFMEU will now provide a form F18 –
[2016] FWCFB 2432
5
Statutory Declaration giving notice under section 183 of the Act that it wants to
be covered by the Agreement.”16
On 28 January 2016, GEMCO emailed Commissioner Gregory seeking
clarification whether the CFMEU also provided evidence to support their claim
that the employees were members during the bargaining period.17
On 28 January 2016, the Commissioner emailed GEMCO advising that dates of
employees’ membership with the CFMEU were not provided.18
On 28 January 2016, the Commissioner also emailed the CFMEU, advising that
GEMCO had asked that the Commission also be satisfied that the employees on
the CFMEU list “were also employed by GEMCO prior to the date on which the
Agreement was made”. In “order to expedite this matter” a response by telephone
was requested.
On 28 January 2016, the Commissioner emailed GEMCO advising that he was
satisfied that “at least one, if not more, of the employees on the list of names
previously supplied to me by the CFMEU was employed by GEMCO at the time
the Agreement was made” and proposed sending the documentation to the
CFMEU. The email stated that the CFMEU had “advised that they will be [sic]
then endeavour to forward the F18 Statutory Declaration to the Commission as
soon as possible so that the approval of the Agreement can be finalised”.19
On 29 January 2016, the Associate to Commissioner Gregory emailed the Forms
F16 and F17 and the Agreement to the CFMEU.20
On 4 February 2016, GEMCO emailed the Associate to Commissioner Gregory
enquiring as to the status of the CFMEU’s Form F18 and the status of the
approval process for the Agreement.21
On 4 February 2016, the Commissioner emailed the CFMEU, noting that
GEMCO was “anxious to have the Agreement approved” and seeking advice as
to whether the CFMEU was “now in a position to provide the F18 Statutory
Declaration and, if so, when it will be received”.
On 4 February 2016, the CFMEU filed its Form F18 in the Commission by
email.
On 4 February 2016, a Notice of Listing for eHearing, before Commissioner
Gregory at 4:00 pm on Friday, 5 February 2016 was forwarded to the parties.22
On 5 February 2016, the Agreement was approved.
[emphasis added]
[17] On 8 March 2016, after the Agreement was approved, the CFMEU emailed to
GEMCO, attaching the Form F18 – Statutory declaration of employee representative in
relation to an application for approval of enterprise agreement.23
The Issue on Appeal
[18] There is agreement as to the following matters:
The CFMEU was a bargaining representative in respect of the Agreement;
The CFMEU provided written notice to the Commission, by filing in the
Commission on 4 February 2016, a Form F18 indicating it wished to be cover by
the Agreement;
[2016] FWCFB 2432
6
The Form F18 was filed in the Commission prior to the approval of the
Agreement by Commissioner Gregory on 5 February 2016;
A copy of the Form F18 was not given to GEMCO prior to the approval of the
Agreement on 5 February 2016. A copy was provided by email from the CFMEU
to GEMCO on 8 March 2016; and
The failure by the CFMEU to provide a copy of the Form F18 to GEMCO prior
to the approval of the Agreement resulted from an oversight by the relevant
CFMEU officer.24
[19] It may be seen from the chronology above and the emphasised passages in particular,
that GEMCO was put on notice that the CFMEU wished to be covered by the Agreement and
a s.201 note was made in the approval decision to that effect. In fact, GEMCO utilised its
opportunity to object to the CFMEU being covered on the basis that it was not a bargaining
representative, advising it would not oppose the CFMEU being covered by the Agreement if
it substantiated to Commissioner Gregory’s satisfaction that the CFMEU was a bargaining
representative on a confidential basis. Commissioner Gregory subsequently advised GEMCO
that he was satisfied that the CFMEU was a bargaining representative.
[20] Commissioner Gregory foreshadowed receipt of the Form F18 from the CFMEU to
GEMCO. Upon receipt by the Commissioner of the Form F18 filed by the CFMEU, the
Commissioner listed the matter for eHearing 24 hours later. In the usual way, the Notice of
Listing advised that “[a]ny person wishing to be heard in this matter should contact Member
Assist at least one hour prior to the abovementioned time and the matter will be listed for an
attendance hearing” and, in the “absence of any person indicating they wish to be heard”, the
application for approval would be determined on the basis of the materials lodged in the
Commission. No request was made by GEMCO, or any other party, for an attendance hearing,
and no further submissions were made in relation to the coverage of the CFMEU.
Submissions
[21] The issue for consideration in the appeal is whether Commissioner Gregory erred by
including the CFMEU in the note recorded in paragraph 3 of his decision in circumstances
where the CFMEU failed, pursuant to s.183(2) of the Act, to give GEMCO a copy of the
written notice provided to the Commission under s.183(1) of the Act (in this case a copy of
the Form F18) prior to the approval of the Agreement.
[22] GEMCO submitted that one of the requirements of s.183 of the Act, namely that the
requirement upon the CFMEU to give the written notice referred to in s.183(1) of the Act to
GEMCO in accordance with s.183(2) of the Act before the Agreement was approved, was not
met.
[23] In this circumstance, GEMCO, relying on the Full Bench decision in RotoMetrics,
submitted that:
“. . . a precondition for the recording of a note in accordance with s 201(2)(a) . . . was
not met. As a result, the Commissioner erred in including a note, in [3] of his decision,
that in accordance with s 201(2) of the Act, the Agreement covers the [CFMEU].”25
[2016] FWCFB 2432
7
[24] The CFMEU submitted that:
(i) Permission to appeal should be refused because the CFMEU met the
substantive requirement for coverage under the Agreement – it was a
bargaining representative as found by Commissioner Gregory and it was not
challenged on appeal. It submitted that the CFMEU provided a copy of the
Form F18 to GEMCO on 8 March 2016. The CFMEU submitted that in those
circumstances, even if the appeal was successful, we should exercise our
discretion to confirm the decision of the Commissioner on the basis that the
CFMEU was a bargaining representative and had given a copy of the written
notice of its wish to be covered by the Agreement to both the Commission and
GEMCO at the time of the appeal and any rehearing of the approval
application to be undertaken in the event that the appeal was successful. It
submitted that there would be no prejudice to GEMCO in confirming the
Commissioner’s decision and no public interest in the appeal;
(ii) RotoMetrics was wrongly decided. It submitted that the plain reading of
s.201(2)(a) of the Act references s.183(1) only and there is no basis to read the
terms of s.183(2) into it. It submitted that s.183(2) had a purpose separate from
s.201(2)(a) of the Act – to provide an employer with a reasonable opportunity
to be heard in respect of coverage of an organisation in circumstances where
the employer had a substantive basis for objecting to coverage on the grounds
that the organisation seeking coverage was not a bargaining representative;
(iii) In the alternative, if RotoMetrics is correct, the requirements of s.183(2) were
met in any case. The evident purpose of s.183(2) was met, with Commissioner
Gregory putting GEMCO on notice of the CFMEU wished to be covered and
provided an opportunity for GEMCO to be heard in relation to the bargaining
representative issue both before and after the filing of the CFMEU’s Form F18;
and
(iv) As a further alternative argument, the CFMEU submitted that if there was non-
compliance with s.183(2), there would be appealable error but not of the kind
that invalidates the decision.26
Consideration
Permission to Appeal
[25] An appeal under s.604 of the Act may be brought with the permission of the
Commission. Section 604(2) provides:
“(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.”
[26] The appeal by GEMCO raises a question of jurisdiction: whether Commissioner
Gregory exceeded his jurisdiction in noting coverage of the CFMEU in circumstances where a
jurisdictional pre-condition had not been met. The appeal also raises a question as to whether
the Full Bench decision in RotoMetrics was correctly decided and should be applied. GEMCO
contended that RotoMetrics was correctly decided and should have been followed by the
[2016] FWCFB 2432
8
Commissioner. GEMCO’s appeal was brought having regard to, and in reliance on, the
decision in RotoMetrics. The CFMEU contended that RotoMetrics was wrongly decided. In
those circumstances we are satisfied that it is in the public interest to grant permission to
appeal. We grant GEMCO permission to appeal.
Was RotoMetrics correctly decided?
[27] In the appeal, the CFMEU invited us to depart from the Full Bench decision in
RotoMetrics.
[28] It is an unusual course for the Commission to reconsider a Full Bench decision27 and,
although not bound, as a non-judicial body, “by the principles of stare decisis, as a matter of
policy and sound administration”, the Commission has generally followed Full Bench
authority on the “issues to be determined, in the absence of cogent reasons for not doing so”.28
The issue in contention in the appeal concerns a matter of statutory construction. A Full
Bench in Australian Nursing Federation v Alcheringa Hostel Inc29 set out the approach of the
Federal Court in Telstra Corporation Ltd v Treloar30 in relation to errors in statutory
construction:
“After considering the various authorities on the point and noting that rigid adherence to
the doctrine of precedent preventing a court from overruling its own earlier decision
cannot be justified, the majority expressed the following view:
‘The view which we prefer is that unless an error in construction is patent, or
has produced unintended and perhaps irrational consequences not foreseen by
the court that created the precedent, the first decision should stand. . . .
Accordingly, we venture to suggest it would be on a rare occasion that an
intermediate appellate court . . . will allow an issue concerning the construction
of a statute, past and closed . . . to be thrown open, producing as it clearly will
uncertainty, disruption to the conduct of affairs, a sense of grievance in those
who may consequently receive treatment less favourable than that received by
others under the same statute and additional cost and expense.’”
[29] We accept that the reconsideration of Full Bench authority on the issues to be
determined is a serious step to be rarely taken and only taken in relation to a decision
concerning statutory construction circumstances where the decision is patently in error or has
produced unintended or irrational consequences.
[30] It is common ground that the CFMEU did not provide GEMCO with a copy of the
written notice stating that it wanted the Agreement to cover it prior to the approval of the
Agreement on 5 February 2016.
[31] The Full Bench in RotoMetrics considered the operation of ss.183 and 201 of the Act,
finding:
“[16] The question which arises for determination is the effect of s 183(2) in relation
to the requirement placed upon Members of [the Commission] in s 201(2) of the Act.
[17] Section 183(1) of the Act provides employee organisations, which are
bargaining representatives in relation to an agreement lodged for approval, with the
[2016] FWCFB 2432
9
option of giving [the Commission] a written notice stating that the organisation wants
the enterprise agreement to cover it. Section 183(2) qualifies the operation of s.183(1)
in relation to the written notice, when given, requiring that the notice must be given to
[the Commission], and a copy given to each employer covered by the enterprise
agreement, in each case, before [the Commission] approves the agreement.
[18] The AMWU’s submission that s 201(2) of the Act relates solely to s 183(1)
gives s 183(2) no work to do in respect of the giving of a notice to be covered or
agreement approval more broadly or in any other respect so far as we are able to
ascertain, whether in relation to the giving of a copy of a notice to an employer or in
relation to the time at which a notice is required to be given. In our view, s 183 must
be read as a whole, with s 183(2) setting out conditions in respect of the giving of a
written notice. Such a reading of s 183 gives s 183(2) a statutory purpose, consistent
with a purposeful interpretation of the statutory provisions.
[19] We also note that our approach in which s 183(2) of the Act prescribes
conditions in relation to the giving of notice under s 183(1), thereby incorporating the
temporal requirement in s 183(2) for the giving of a notice prior to the approval of the
agreement, is consistent with the language of s 201, in which an employee
organisation ‘has given’ notice, at which point [the Commission] must note in its
decision to approve the agreement that the agreement covers the organisation.
[20] We do not accept the characterisation of the requirement to give a copy of the
written notice to each employer covered by the agreement before approval as a
procedural requirement. Section 183(2) of the Act contains substantive requirements,
setting out conditions which must be satisfied in respect of a written notice stating that
the organisation wants the enterprise agreement to cover it, which are a pre-condition
to the requirement in s 201(2) of the Act upon [the Commission] to note in its decision
to approve an agreement that the agreement covers the organisation. Those
requirements, as set out in the Explanatory Memorandum, at paragraph 754, are:
‘Subclause 183(2) provides that an employee organisation must give the notice
that it wants to be covered by the agreement to FWA before FWA approves the
agreement. A copy of the notice must be given to each employer covered by
the agreement before FWA approves the agreement.’
[21] The Inghams decision relied upon by the AMWU considered whether a notice
provided to meet the requirement within provisions in Pt 2–4 of the Act to take all
reasonable steps to give the notice of the right to be represented by a bargaining
representative to each relevant employee was invalid or affected the making and
approval of the agreement made in that case. The particular notice in question,
provided to one employee, did not include the qualification set out in item 2(3) of Sch
13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009 (Cth) and an additional paragraph in Sch 2.1 reg 2.05, made under the Fair Work
Regulations 2009 (Cth).
[22] The Full Bench found that, despite the omission, the notice still notified the
employee in question of their right to appoint a bargaining representative and did not
affect the legislative entitlement of an employee covered by an individual agreement-
based transitional instrument to appoint a bargaining representative. The Full Bench
[2016] FWCFB 2432
10
found that the notice met the purpose of the provisions in Pt 2–4 of the Act of
providing the employee with notice of their representational rights.
[23] The Inghams decision concerned partial non-compliance with the terms of the
notice but found that the notice complied with the substantive purpose of the statutory
provisions – to provide notice to employees of their representational rights. In the
circumstances before Commissioner Blair there was no compliance at all with the
statutory requirement and no meeting at all of the purpose of the provision to provide
the employer with notice, prior to the approval of the Agreement, that the AMWU
wanted to be covered by the Agreement.”31
[32] The Inghams decision is a reference to the Full Bench decision in “Automotive, Food,
Metals, Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU) v Inghams Enterprises Pty Ltd.32
[33] In the appeal, the CFMEU contended that the Full Bench in RotoMetrics erred in not
applying the plain words of s.201(2)(a) of the Act in which the notice requirement is limited
in its plain terms to “a notice under subsection 183(1)”. It submitted that the Full Bench erred
in reading an additional requirement – the giving of a copy of the written notice given to the
Commission and the employer – found in s.183(2), into the words of s.201(2)(a) of the Act. It
submitted that s.183(2) had its own separate purpose, based on natural justice, of affording an
employer an opportunity to object to coverage on the only substantive basis available – that
the organisation was not a bargaining representative.
[34] The CFMEU submitted that s.201, properly interpreted, relates to the requirement in
s.183(1) of the Act to provide notice to the Commission that an organisation which is a
bargaining representative wishes to be covered by an agreement, which was met in the
circumstances of this case. The CFMEU submitted that no further issue arises in respect of
s.201 of the Act (other than approval of an agreement).
[35] The CFMEU further submitted that the separate natural justice requirement in s.183(2)
was met in the circumstances of this case, so that there was no denial of natural justice
warranting attention on appeal.
[36] We think that the CFMEU’s contention is correct for several reasons:
Section 201(2)(a) of the Act is limited in its express terms to the giving of a
notice under s.183(1);
The Full Bench in RotoMetrics read s.183(1) as a reference to the whole of s.183,
in order to give s.183(2) a purpose – “to provide the employer with notice, prior
to the approval of the Agreement, that the AMWU wanted to be covered by the
Agreement”.33 It is not readily apparent why this purpose is not met by s.183(2)
standing alone, as a procedural requirement directed to that purpose; and
No apparent purpose within the broader context of the enterprise bargaining
scheme within the Act is served by construing s.183(2) of the Act as requiring the
giving of the written notice to the employer as a substantive pre-requisite to the
noting under s.201 of the Act that an organisation is covered by the agreement.
[2016] FWCFB 2432
11
[37] In those circumstances, we think there was no basis to read the reference to s.183(1) in
s.201(2)(a) of the Act as a reference to s.183 as a whole, thus bringing in s.183(2) as a
substantive pre-requisite to the making of a note under s.201(2)(a) that a bargaining
representative is covered by the agreement. The words in s.201(2)(a) are plain and there is no
warrant to read them other than as they appear.
[38] It is unnecessary to read s.183(2) into the reference to s.183(1) in order to give
s.183(2) a purpose. The purpose of s.183(2) as described by the RotoMetrics Full Bench – to
provide notice to the employer of the wish of the organisation to be covered – stands by itself
to protect the interests of employers and to provide them with an opportunity to argue against
coverage on the substantive ground that the organisation is not a bargaining representative.
Section 183(2) is directed to providing the employer with an opportunity to argue against the
coverage of an organisation on the substantive basis that it is not a bargaining representative.
There is no reason to incorporate an unstated additional requirement into the words in
s.201(2)(a), inconsistent with its plain words, in order to provide a purpose to s.183(2) within
the context of the bargaining scheme in Part 2–4 of the Act.
[39] Read in the context of the statutory scheme to provide a “simple, flexible and fair
framework for enterprise bargaining” and within the agreement provisions in Part 2–4 of the
Act as a whole, the requirement upon a bargaining representative in s.183(2) of the Act to
give written notice to an employer of its wish it be covered cannot be seen as a substantive
requirement for the noting of coverage under s.201(2)(a). In the context of a statutory scheme
for the making of enterprise agreements between employers and their employees, s.183
provides a substantive right for an organisation which is a bargaining representative for an
enterprise agreement to be covered by the agreement and to represent its members through,
for example, providing the right to enforce the terms and conditions of the enterprise
agreement.34 Given the plain words within s.201(2)(a) of the Act, there is no apparent reason
to read s.183(2) into s.201(2)(a), so as to qualify access to that right.
[40] The Act does not require that the written notice, by an organisation wishing to be
covered by an agreement, to be in a particular form. The Fair Work Commission Rules 2013
(the Rules) do provide for a form (Form F18) but the Rules allow discretion for the form to be
waived. That a particular form for the written notice is not prescribed in the Act suggests that
the legislative purpose of s.183(2) is procedural so as to provide natural justice to a party
whose interests are affected by the coverage of an employee organisation.
[41] In our view, the Full Bench in RotoMetrics was clearly wrong to elevate s.183(2) to a
jurisdictional prerequisite for the noting by the Commission under s.201 of the Act that the
agreement covers a bargaining representative.
[42] The approach in RotoMetrics leads to the irrational outcome, as in the present case,
where a bargaining representative is denied their right under the Act to be covered by an
enterprise agreement notwithstanding the meeting of the substantive requirement for such
coverage – being a bargaining representative – due to an oversight, in circumstances where
the employer was fully afforded an opportunity to resist coverage. GEMCO was aware that
the CFMEU wished to be covered by the Agreement and should have been aware that the
CFMEU had lodged a Form F18, when its application was listed for eHearing, given the
preceding correspondence with GEMCO about the filing of a Form F18. GEMCO had fully,
albeit it unsuccessfully, resisted such coverage on the only substantive basis available to the
employer – by challenging whether the CFMEU was a bargaining representative. GEMCO
[2016] FWCFB 2432
12
had no substantive basis for further resisting coverage once Commissioner Gregory had
determined the substantive issue of bargaining representative status against it. In those
circumstances, the construction of s.183(2) by the Full Bench in RotoMetrics would result in
an outcome in which a procedural oversight triumphed over the substantive right provided to
bargaining representatives by Part 2–4 of the Act.
[43] We note that in RotoMetrics, the Full Bench considered the construction of ss.183 and
201, and their interaction, in circumstances where neither a written notice was given under
s.183(2), nor the purpose of s.183(2) of affording the employer an opportunity to resist
coverage of an organisation as a bargaining representative was met. That Full Bench was not
required to consider the circumstances which arise in the current matter, where GEMCO had,
and fully utilised, the opportunity to resist coverage of the CFMEU on the grounds that it was
not a bargaining representative and the purpose of s.183(2) had been otherwise achieved and
the rationality of the outcome arising from its construction of ss.183 and 201 in those
circumstances. The outcome which arises in those circumstances tells against the construction
of s.183(2) in RotoMetrics.
[44] In all of those circumstances, we think that there are cogent reasons to reconsider the
authority in RotoMetrics and apply a construction of s.183(2), as a natural justice requirement
directed to affording the employer an opportunity to resist coverage of an organisation on the
substantive basis that the organisation is not a bargaining representative, as required by
s.183(1) of the Act.
[45] In our view, s.183(2) of the Act is properly characterised as a procedural requirement,
the purpose of which is to provide the employer with notice, prior to the approval of an
enterprise agreement, that an organisation wishes to be covered by an enterprise agreement
and affording the employer an opportunity to resist coverage on the only substantive statutory
basis available – that the organisation is not a bargaining representative as required by
s.183(1) of the Act.
[46] On the other hand, s.183(1) contains two requirements for noting that an employee
organisation is covered by an enterprise agreement: first, that it is a bargaining representative
within the meaning of s.176(1)(b) of the Act and, secondly, that the organisation wishes to be
covered, with the wish conveyed by giving the Commission written notice.
[47] GEMCO argued that the characterisation in RotoMetrics of s.183(2) as a separate
procedural requirement would negate the effect of and adherence with s.183(2) and
necessitate an appeal in order to remove from a s.201 note an employee organisation which
was not a bargaining representative. We see no basis for this proposition for two reasons.
[48] First, a written notice under s.183(1) is not a valid notice unless the employee
organisation is a bargaining representative that meets the requirements in s.176(1)(b) of the
Act. The Commission must be satisfied that an organisation is a bargaining representative
before making a note in the approval decision that the organisation is covered by an enterprise
agreement. In the normal course, the Commission can be satisfied that an organisation is a
bargaining representative for the proposed enterprise agreement on the basis of the
identification by the employer of the organisation as a bargaining representative in answer to
question 4 in the Form F16 – Application for approval of enterprise agreement – filed by the
employer.
[2016] FWCFB 2432
13
[49] In the present case, for example, GEMCO identified each of the other unions named as
being covered in the Commissioner’s decision in its Form F16. Where an organisation which
was not identified as a bargaining representative sought the documentation filed with an
application for approval of an enterprise agreement or provided written notice that it wished
to be covered by an enterprise agreement, the Commission would need to be otherwise
satisfied that the organisation was a bargaining representative and afford the employer (and
other bargaining representatives) an opportunity to contest the proposition that the
organisation was a bargaining representative entitled to be covered by the enterprise
agreement. In the present case, the Commission’s Support Team, on behalf of Commissioner
Gregory, did so in its email of 7 January 2016, seeking the views of GEMCO and each
organisation identified in the Form F16 as a bargaining representative for the Agreement in
relation to the CFMEU’s request for the documentation attending the application for approval.
Had the CFMEU simply filed a written notice to be covered, the same enquiry would have
been made in order that the Commissioner could be satisfied that the CFMEU was a
bargaining representative. In each case the employer and other bargaining representatives had
the opportunity to argue that the CFMEU did not meet the requirements in s.176(1)(b) of the
Act. The requirement in s.183(1) of the Act for the Commission to be satisfied that an
organisation is a bargaining representative before making a note that the organisation is
covered by an enterprise agreement and the requirement to afford natural justice to parties
whose interests are affected, which is supported by the procedural requirement in s.183(2) of
the Act, protect against the coverage through a s.201 note of an employee organisation which
was not a bargaining representative in respect of an enterprise agreement and not entitled to
be covered by it.
[50] Further, the practice of listing approval decisions for eHearing provides an additional
opportunity for affected parties to seek a hearing to raise issues about the coverage of an
organisation or otherwise raise those issues with the Commission prior to the approval. The
Notice of Listing of an eHearing identifies each of the parties with an interest in the
agreement and affords the employer (and other bargaining representatives) an opportunity to
question the inclusion of any organisation in the distribution list published on the Notice of
Listing and challenge the coverage of that organisation under the enterprise agreement.
[51] The construction of s.183(2) in the conclusion we have reached does not result in an
automatic process, whereby an organisation giving the Commission written notice that it
wishes to be covered by an enterprise agreement is noted as being covered. The requirement
that the Commission must be satisfied that an organisation is a bargaining representative
before making such a note, and the additional requirement to afford the employer and other
bargaining representatives an opportunity to be heard in relation to the requirement that the
organisation is a bargaining representative protects against such a result.
[52] Secondly, an organisation which does not satisfy the substantive requirement that it
was a bargaining representative for the proposed enterprise agreement which gave notice to
the Commission but not the employer and was included in a s.201 note as being covered by an
enterprise agreement, would be confronted by a natural justice argument on appeal which
must succeed, unless an opportunity to object to coverage on the substantive bargaining
representative point had been otherwise provided or the denial of natural justice was to no
practical effect.
[53] For those reasons, we see no incentive for an organisation to avoid meeting the notice
provisions within s.183(2) of the Act. The necessity for an appeal in order to remove from a
[2016] FWCFB 2432
14
s.201 note an employee organisation which was not a bargaining representative would only
arise in circumstances where a Member failed to satisfy him or herself that the organisation
was a bargaining representative or did so without affording the employer or other bargaining
representatives an opportunity to be heard on the bargaining representative requirement
within s.183(1) of the Act.
[54] In the circumstances of the current matter, Commissioner Gregory was satisfied that
the CFMEU was a bargaining representative for the proposed enterprise agreement. That
proposition, when advanced by the CFMEU, was challenged by GEMCO and the
Commissioner took steps to satisfy himself that the CFMEU was a bargaining representative.
His conclusion that the CFMEU was a bargaining representative was not challenged on
appeal. Further the Commissioner received written notice from the CFMEU that it wished to
be covered by the Agreement prior it its approval and approved the Agreement. In those
circumstances, the requirements in s.201(2) for the making of the note that the CFMEU was
covered by the Agreement were satisfied. We find that Commissioner Gregory was correct to
include the CFMEU as a bargaining representative covered by the Agreement in the s.201
note in paragraph 3 of his decision of 5 February 2016, in the circumstances before him.
[55] We dismiss the appeal
Conclusion
[56] Whilst we grant permission to appeal on the basis that a jurisdictional issue was raised
by GEMCO and the point warranted consideration on appeal in light of the Full Bench
decision in RotoMetrics, for the reasons stated above we dismiss the appeal and confirm the
Commissioner’s decision of 5 February 2016 in [2016] FWCA 792.
Costs
[57] The CFMEU submitted that if permission to appeal is denied or the appeal is allowed
and the decision confirmed, it wished to be heard on the question of costs. During the course
of the appeal, the CFMEU identified that its costs application was made on the basis that it
should have been reasonably apparent to GEMCO that its appeal application had no
reasonable prospect of success.35
[58] During the course of the appeal, both GEMCO and the CFMEU consented to the
determination of the CFMEU’s costs application, if pressed, on the basis of written
submissions.
[59] We will determine the costs application, if pressed, on the basis of written
submissions, subject to the following directions:
1. The CFMEU is directed to file in the Commission and serve on GEMCO, the
AMWU and the MUA by 4.00 pm Thursday, 12 May 2016:
a) Advice of whether it presses in costs application; and
b) If it does press in costs application, full written submissions and
documentary evidence in support of its cost application.
[2016] FWCFB 2432
15
2. GEMCO is directed to file in the Commission and serve on the CFMEU, the
AMWU and the MUA by 4.00 pm Thursday, 19 May 2016 full written
submissions and documentary evidence in respect of the cost application.
3. The AMWU and the MUA are directed to file in the Commission and serve on
GEMCO and the CFMEU by 4.00 pm Thursday, 19 May 2016:
a) Advice of whether they wish to make submissions in relation to the
costs application;
b) If they do wish to make such submissions, identify their interest in
doing so and file full written submissions and documentary evidence in
respect of the cost application.
4. If submissions by the AMWU and/or the MUA are filed in relation to the costs
application, GEMCO is directed to file in the Commission and serve on the
CFMEU, the AMWU and the MUA by 4.00 pm Tuesday, 24 May 2016
submissions in reply to those submissions.
5. The CFMEU is directed to file submissions in reply in the Commission and
serve on GEMCO, the AMWU and the MUA by 4.00 pm Friday, 27 May
2016.
SENIOR DEPUTY PRESIDENT
Appearances:
M Follett of Counsel for Groote Eylandt Mining Company Pty Ltd.
J Fetter of Counsel with J Kennedy for the Construction, Forestry, Mining and Energy Union.
A Jacka for The Maritime Union of Australia.
J Blundell-Thornton for the “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
Hearing details:
2016.
Melbourne via video to Sydney and Brisbane:
April 12.
Printed by authority of the Commonwealth Government Printer
Price code C, PR579173
[2016] FWCFB 2432
16
1 [2015] FWCA 792.
2 (2011) 212 IR 373.
3 Unless the employee has appointed another person or revoked the status of the organisation as his or her bargaining
representative – s.176(1(b) of the Fair Work Act 2009 (the Act).
4 r.141, Regulatory Analysis, Fair Work Bill 2008 Explanatory Memorandum.
5 Appeal Book, at p. 220.
6 Appeal Book, at p. 223.
7 Appeal Book, at p. 219.
8 Appeal Book, at p. 219.
9 Appeal Book, at p. 221.
10 Appeal Book, at p. 225.
11 Appeal Book, at p. 228.
12 Appeal Book, at p. 229.
13 Appeal Book, at p. 231.
14 Appeal Book, at p. 231.
15 Appeal Book, at p. 234.
16 Appeal Book, at p. 237.
17 Appeal Book, at p. 239.
18 Appeal Book, at p. 238.
19 Appeal Book, at p. 241.
20 Appeal Book, at p. 242.
21 Appeal Book, at p. 244.
22 Appeal Book, at pp. 247–249.
23 Exhibit GEMCO 2, Attachment LB–1, to Statement of Ms L Bailey.
24 Exhibit CFMEU 2.
25 (2011) 212 IR 373, at para 24.
26 Project Blue Sky Inc and Others v Australia Broadcasting Authority; (1998) 194 CLR 355.
27 Australian Nursing Federation v Alcheringa Hostel Inc, (2004) 134 IR 446, at p. 457.
28 Cetin v Ripon Pty Ltd (t/as Parkview Hotel), (2003) 127 IR 205, at p. 214. See also Re Queensland v Construction,
Forestry, Mining and Energy Union, Section 111AAA application of the Workplace Relations Act 1996, (1998) 86 IR
216.
29 Australian Nursing Federation v Alcheringa Hostel Inc, (2004) 134 IR 446, at 457. See also Algama v Minister for
Immigration and Multicultural Affairs, (2001) 115 FCR 253.
30 (2000) 102 FCR 595, at para 28.
31 (2011) 2012 IR 273 at pp. 376–377.
32 [2011] FWAFB 6106.
33 (2011) 212 IR 373, at para 23.
34 r.141, Regulatory Analysis, Fair Work Bill 2008 Explanatory Memorandum.
35 Section 611(2)(b) of the Act.
