Fair Work Act 2009
s.604 - Appeal of decisions

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 2016 1 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

[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.

[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

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 – 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;

● 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

[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 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 decision 27 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 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 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.

[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 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.

[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 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.

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.

 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.

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