Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [2016] FWCA 6773 of Commissioner Cirkovic at Sydney on 20 September 2016 in matter number AG2016/3985 – the principle of open justice – access of non-parties to documents – requirement to provide reasons – maximum weekly hours – permission to appeal granted – appeal upheld – decision below quashed – matter below remitted.

Factual background

[1] On 21 July 2016, Ron Southon Pty Ltd (the respondent, the company) applied to the Fair Work Commission (the Commission) for approval of an enterprise agreement to be known as the Ron Southon Pty Ltd Enterprise Agreement 2016-2020 (the enterprise agreement).

[2] On 22 July 2016, Thomas Fischer, a Legal/Industrial Officer of the Construction, Forestry, Mining and Energy Union, Construction and General Division, New South Wales Branch (the appellant, the CFMEU) sent an email to the generic email address of the Commission, objecting to ‘the certification’ of the enterprise agreement. The email added:

‘We would be grateful if the Commission would please provide to us with:

1. Completed and signed application form [Form F16];

2. Completed and sworn statutory declaration by the applicant in support of the agreement [Form F17] and a copy of the Notice of Representational Rights provided to employees;

3. Any other documentation submitted by the Applicant in support of their application; and

4. Details of any directions or dates of hearing set down by the Commission.

We thank you for your assistance and look forward to hearing from you.’

[3] On 25 July 2016, Fiona Tucker, the Team Leader of the Commission’s Member Support Research Team, responded to Mr Fischer as follows:

‘Thank you for your email in relation to matter AG2016/3985. The CFMEU is not listed as a Union Bargaining Representative at question 4.2 of the Form 16 application for this matter. Given this we cannot provide the application documentation immediately but we will seek advice from the appropriate Commission Member about provision of the documents and we will contact you once the Member has given us instructions.’

[4] Mr Fischer responded on 29 July 2016 as follows:

‘Dear Ms Tucker,

to assist the Commissioner in their deliberations, we would be grateful if you would please them with the following information, which we believe demonstrates our clear interest in this matter.

We assert that:

1. The CFMEU has constitutional coverage of the work proposed to be performed under the proposed agreement;

2. The CFMEU has a long history of industrial representation of the work proposed to be performed under the proposed agreement;

3. The CFMEU is a party to the relevant modern award the Building and Construction On-site Award 2010;

4. In the future, given the nature of the company’s business it is likely that other members of the CFMEU will be employed in classifications covered by the proposed agreement;

5. The CFMEU will have the right to appeal any decision given in the present proceedings under s 604 of the Act.

6. The Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not be a party to the agreement. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person or organisation.

We thank you for your assistance and look forward to hearing from you.’

[5] On 30 August 2016, Mr Fischer received a reply to his email from Grant Ellis, Members Support Research Team.

‘Dear Mr Fischer,

I refer to matter AG2016/3985 and to your emails dated 22 July 2016 and 29 July 2016 requesting copies of the application documentation lodged in this matter.

The matter has been allocated to Commissioner Cirkovic for approval.

It is noted that the CFMEU are not listed as a Union Bargaining Representative at question 4.2 of the Form F16 application in this matter.

In order for the Commissioner to establish that the CFMEU is a bargaining representative for the Agreement, she has requested that you please provide a list of the names of your members who will be covered by the Agreement.

I confirm that the list of names provided to the Commissioner will remain confidential and will not be disclosed to the Applicant in this matter.

The Commissioner has asked that the above please be provided as soon as possible, but by no later than close of business Thursday, 1 September 2016. Please provide a response to [email protected].’

[6] Mr Fischer responded to Mr Ellis by email on 1 September 2016. Mr Fischer said that the CFMEU did not have any members employed by the company at the current time. However, he respectfully urged the Commissioner to hear the CFMEU in the matter for the reasons outlined in his email of 29 July 2016.

[7] Mr Fischer then said if the Commissioner would not hear the CFMEU in the matter, they respectfully wished to put forward some information that the Commissioner might choose to consider when assessing the enterprise agreement. The email then listed a number of provisions of the enterprise agreement which Mr Fisher said the CFMEU did not believe were compliant with the Fair Work Act 2009 (the FW Act). Their concerns related, inter alia, to a potential inconsistency with the National Employment Standards (NES), and to whether the employees under the agreement would be better off overall compared to the award.

[8] Mr Ellis responded to Mr Fischer indicating that he would provide the email to the Commissioner for her consideration and added that he was instructed to forward a copy to the employer for their information.

[9] The enterprise agreement was approved by Commissioner Cirkovic on 20 September 2016, with undertakings. This was confirmed by Mr Ellis in response to a query by Mr Fischer on 22 September 2016.

[10] Mr Fischer then sent an email to Mr Ellis asking whether there was any correspondence from the Commissioner on the CFMEU’s application to be heard in the matter.

[11] Mr Ellis responded:

‘The Commissioner did not ask for any further correspondence to be sent to the CFMEU given their confirmation that they did not have members covered by the Agreement.’

[12] Mr Fischer then wrote:

‘Sorry if I wasn’t clear – did the Commissioner determine that the CFMEU was not to be heard in the matter at some point, when was that point, and how was this communicated?’

[13] Mr Fischer received a reply from Commissioner Cirkovic’s associate indicating that the Commissioner had considered the matters raised in his correspondence, and the file had been closed.

Notice of Appeal

[14] On 7 October 2016, the CFMEU applied to the Commission to appeal the decision of Commissioner Cirkovic approving the enterprise agreement. The grounds of appeal were subsequently amended on 2 November 2016. There were ultimately seven grounds of appeal:

1. The Commissioner failed to give any reasons for her decision not to allow the appellant to be heard on the respondent’s application to have the enterprise agreement approved;

2. The Commissioner failed to afford the appellant procedural fairness by not giving any reasons for her decision not to allow the appellant to be heard in relation to the respondent’s application to have an enterprise agreement approved;

3. The Commissioner failed to give any reasons for her decision not to provide the appellant access to the respondent’s application and declaration required by rule 24 of the Fair Work Commission Rules 2013 to accompany such application;

4. The Commissioner failed to afford the appellant procedural fairness by not giving any reasons for her decision not to provide the appellant access to the respondent’s application and declaration;

5. The Commissioner fails to afford the appellant procedural fairness by not providing the appellant with access to the material accompanying the respondent’s application, including the application and declarations required by rule 24 of the Fair Work Commission Rules 2013 to accompany such application;

6. The Commissioner erred in concluding that the agreement satisfied the better off overall test;

7. The Commissioner erred in approving the enterprise agreement because terms of the agreement contravened s.55 of the Fair Work Act 2009.

Nature of Appeal

[15] An appeal of a decision is not as of right and permission to appeal must first be obtained. 1 Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.2 The public interest is not satisfied simply by the identification of error, or a preference for a different result.3 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of Fair Work Australia (FWA) identified some of the considerations that may attract the public interest:

‘... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...’ 4

[16] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified, but examples of considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if permission is refused. 5

Consideration

[17] The grounds of appeal can be grouped into three: those concerning the failure of the Commissioner to give any reasons for her (implied) decision not to allow the appellant to be heard on the company’s application to have the enterprise agreement approved (grounds 1 and 2); those concerning the Commissioner’s decision not to give the appellant access to the company’s application to have the enterprise agreement approved together with the accompanying material, nor to provide any reasons for that decision (grounds 3, 4 and 5); and those concerning the Commissioner’s decision to approve the enterprise agreement in the light of its alleged failure to meet two of the requisite statutory tests (grounds 6 and 7).

[18] The Full Bench, in Collinsville 6 dealt at some length with the rights of employee organisations in relation to enterprise agreements for which they are not bargaining representatives. The relevant extracts of the decision are as follows:

‘Right to be heard other than as bargaining representative

[48] It is accepted that the FW Act does not provide for intervention in proceedings before the Commission by a non party. Section 590 of the FW Act provides, relevantly that the Commission may, except as provided by the FW Act, inform itself in relation to any matter before it in such manner as it considers appropriate, including by inviting, subject to any terms and conditions determined by the Commission, oral or written submissions.(Sections 590(1) and (2) (b))

[49] The CFMEU says that it was not necessary for it to have been a party to the proceeding in order to have a right to be heard. It says that it was sufficient that it had some right, interest or legitimate expectation that might be affected by the proceeding. Consequently, it says that it should have been afforded procedural fairness by the Senior Deputy President and that by being prevented from putting its case in opposition to the approval of the Agreement it was denied procedural fairness.

…

[51] It was submitted that the FW Act does not contain any intention to the contrary such that the CFMEU should not be heard on an application to approve the Agreement if the decision to approve the Agreement will affect its rights, interests or legitimate expectations.

[52] In Annetts v McCann ((1990) 170 CLR 596) the High Court (per Mason CJ, Deane and McHugh JJ) said:

“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: The Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383, at pp 395-396; Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at pp 109-110; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; [1977] HCA 39; (1977) 137 CLR 487, at pp 496, 500; J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at p 456; Haoucher v. Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 64 ALJR 357, at p 371; [1990] HCA 22; 93 ALR 51, at p 73. In Tanos, Dixon C.J. and Webb J. said (at p 396) that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v. Parole Board of New South Wales (1986) 5 NSWLR 338, at pp 344-345, 347, 349. In Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, Mason J. said (at p 584) that the law in relation to administrative decisions: “has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.” In Haoucher, Deane J said that the law seemed to him “to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making”.”

[53] No party quarrelled with the propositions set out in passages extracted from the decisions above or with the proposition that the Commission is an administrative decision-making body. The more difficult issue concerns the identification of the right, interest or legitimate expectation vested in the CFMEU which is said to be affected by a decision to approve the Agreement. The CFMEU submitted that its rights, interests and legitimate expectations were affected, or potentially affected by the approval of the Agreement.

[54] As to the CFMEU’s rights that are said to be affected, the CFMEU submitted, in summary, that the decision to approve the Agreement will affect its right to represent employees at the mine and for these employees to be members of the CFMEU. Further, it will affect its capacity to protect terms and conditions of employment. Other rights relied in by the CFMEU are identified earlier and are not reproduced here.

[55] In our view this argument has no substance. Firstly, the argument presupposes that the CFMEU has some particular right which will be taken away or interfered with, if the Agreement is approved. The CFMEU’s entitlement to represent the industrial interests of employees at the Collinsville coal mine is to be derived from the CFMEU’s rules. The approval of the Agreement will not interfere with that. Before the Agreement was approved the terms and conditions of the employees covered by the Agreement were determined, inter alia, by the Black Coal Mining Industry Award 2010, the applicable modern award. Under the dispute settlement procedure of the modern award the CFMEU has no particular right of representation. Representation may be sought by employees in relation to disputes and in relation to consultation. Under the modern award employees choose their representation. They may choose the CFMEU. That position is not changed by approval of the Agreement. Employees may choose to be represented by the CFMEU in disputes under the Agreement and in consultation matters. In any event such rights are vested in the employees not in the CFMEU. The Modern Award is not a respondency award made in settlement of an interstate industrial dispute involving the CFMEU. The statutory basis and constitutional underpinning of modern awards are significantly different to awards made under predecessor legislation in settlement of disputes.

[56] Secondly, the Agreement does not affect the rights of an employee covered by it to choose whether he or she wishes to join, continue to be or cease to be, a member of the CFMEU.

[57] Thirdly, the approval of the Agreement does not affect the right of the CFMEU to be involved in bargaining for any successor or replacement agreement, nor does it affect the right of the CFMEU to represent employees more broadly engaged in the coal mining industry or to advocate for improvements to the terms and conditions under which those employees are employed.

[58] Fourthly, the approval of the Agreement does not affect the capacity of an officer of the CFMEU who is a permit holder under the FW Act to investigate suspected contraventions of the FW Act or of the terms of the Agreement. (See Section 481) Nor does it affect the capacity of the permit holder to enter Collinsville’s premises for the purposes of holding discussions with employees. (See section 484)

[59] Fifthly, to the extent that it was suggested that the CFMEU’s capacity to represent employees and protect their interests under the Coal Mining Safety and Health Act 1999 (Qld) and the Coal Mining Safety and Health Regulation 2001 (Qld) is undermined or taken away by the approval of the Agreement, that proposition is rejected. As s.29 of the FW Act makes clear, an enterprise agreement applies subject to, and does not prevail over, a State law dealing with occupational health and safety matters. Such rights or interests as the CFMEU may have under those laws are clearly unaffected by the approval of the Agreement.

[60] Sixthly, the CFMEU’s reliance on rights that it had under agreements which previously applied to work at the Collinsville coal mine is misconceived in that whatever else might be said about the content of those agreements, they did not cover the employees who are now covered by the Agreement when the agreement was made and they did not cover Collinsville. Consequently the CFMEU had no particular right under those agreements vis-a-vis the employees or Collinsville, and so no right of the CFMEU is affected by the approval of the Agreement.

[61] The CFMEU also relied upon the matters set out in paragraphs [29] – [40] of the affidavit of Mr Smyth affirmed on 25 June 2014 in support of its proposition that its right, interest or legitimate expectation is affected by the approval of the Agreement. Essentially Mr Smyth’s affidavit speaks to the history of the CFMEU in its representation and membership at the Collinsville coal mine, the attempts to de-unionise at the mine, the prospect of the strategy adopted by Collinsville and its related entities being adopted by other operators in the black coal industry in Queensland and New South Wales and the CFMEU’s desire to protect its interest under relevant occupational health and safety legislation (discussed earlier above) which are adversely impacted by the incorporation into the Agreement of Collinsville fatigue management policy.

[62] Doubtless, the CFMEU has an interest in all of these matters or even some expectation as to these matters but that will not be enough to attract the right to be heard. As McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam: ((2003) 214 CLR 1

“Used in some strict sense, or as an antonym to “illegitimate”, the term “legitimate” is apt to suggest entitlement in law to some final outcome. However, the term has been used in the authorities not in that sense, but with a lesser meaning of “reasonable”. (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 563, 583) Here too care is needed. Not every expectation or hope which might be entertained by a “reasonable man” will necessarily attract the doctrine. …

[63] Later their Honours said:

“The role of the doctrine of legitimate expectation

In his dissenting judgment in Teoh, McHugh J questioned whether, given the development in Australian case law of the requirements of procedural fairness, the doctrine of legitimate expectations was left with any distinct role….

Earlier, in Quin, Brennan J had said ([1990] HCA 21; (1990) 170 CLR 1 at 39):

“So long as the notion of legitimate expectation is seen merely as indicating ‘the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded’ to accord procedural fairness to an applicant for the exercise of an administrative power, the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would become a stalking horse for excesses of judicial power.”

These statements by McHugh J and Brennan J should be accepted as representing the law in Australia. The decision in Teoh does not require any contrary or other understanding of the law.””

[64] We are not persuaded that having that interest or expectation articulated by the CFMEU by reference to the Smyth affidavit gave rise to a right to be heard in the application for the approval of the Agreement.

[65] In our view the right, interest or legitimate expectation that is said to be affected by application of the kind before the Senior Deputy President must be identified and understood against the framework of enterprise bargaining and agreement making established by the FW Act. It is not enough, without more, to point to the status of the CFMEU as an employee organisation with a history of representation at the workplace or in the industry. Moreover, this is not a case where some of the members of the CFMEU voted against the approval of the Agreement or did not vote at all. All of the employees covered by the Agreement voted, and all of those employees (including Employee 2) voted in favour of approving the Agreement.

[66] The statutory framework includes that enterprise agreements are made principally between an employer and employees; that bargaining representatives have a role in relation to enterprise bargaining either by default or by appointment; that default bargaining representatives can be displaced by appointment or by revocation; that enterprise agreements operate primarily at the single enterprise level and do not create rights of general application across an industry or have common rule application; that rights of an employee organisation to be involved in the bargaining process under the FW Act is not separate from its standing as a bargaining representative; and that its capacity to be involved in protected industrial action by seeking a protected action ballot authorisation cannot be separated from its standing as a bargaining representative.

[67] The legislative history of the agreement making and approval provisions in the FW Act is a relevant contextual consideration in this regard. ‘Non-union’ agreements, known as enterprise flexibility agreements (EFAs), first became a feature of the Commonwealth system with the enactment of Division 3 of Part VB of the Industrial Relations Act 1988 (Cth) (the IR Act). The IR Act provided ‘eligible unions’ with an opportunity to take part in negotiations for an EFA by effectively placing an obligation on an employer to notify eligible unions and to provide them with a reasonable opportunity to take part in negotiations. An eligible union in relation to an EFA was defined in s.170LB to mean an organisation of employees:

(a) that is a party to an award that binds the employer in respect of work performed in that enterprise; and

(b) of which one or more employees whom the employer employs to perform work in the enterprise are members.

[68] An eligible union was entitled to be heard on an application to the Commission to approve the implementation of an EFA. (Enterprise Flexibility Agreements Test Case May 1995 (1995) 59 IR 430 at 451) Further, s.170NB(1) of the IR Act provided that an organisation of employees was entitled to be heard on such an application if it was bound by an award that bound the employer party to the EFA in respect of work performed in the relevant enterprise. There is no such express right to be heard in the FW Act and the role of organisations of employees in the bargaining and agreement approval provisions under the FW Act is very different to that provided for in the IR Act.

[69] That an employee organisation has an ongoing relationship with its members who might become covered by an agreement and has a role under its rules in representing those members is not relevant in the context of a right to be heard in relation to the approval of an agreement. The FW Act does not confer a right on employee organisations (other than in the case of the greenfields agreement) to be covered by an agreement if it was not a bargaining representative. Likewise, the FW Act does not confer upon an employee organisation a role in enterprise bargaining under the FW Act outside of its status as a bargaining representative. The mere fact that an employee organisation has an ongoing relationship with its members and is entitled to represent their industrial interests is not a sufficient basis to conclude that the approval of an enterprise agreement will adversely affect a right, interest or legitimate expectation of that employee organisation.

[70] In similar vein, that an employee organisation has amongst its interests, objects or expectations, that it will obtain and maintain reasonable employment conditions for its members, is in the context of the bargaining framework established by the FW Act, an insufficient basis for there to arise a right, interest or legitimate expectation and thereby a conferral on the employee organisation of a right to be heard in relation to an application to approve an enterprise agreement.

[71] Account should also be taken of the fact that enterprise agreements may confer or deal with the rights and obligations of an employee organisation vis-a-vis the employees and that a new agreement might displace or alter those rights and obligations, but that is not the case here.

[72] Whether an employee organisation which is not a bargaining representative has a right to be heard in relation to an application for the approval of an agreement will depend on the circumstances in each case. In this case, when the rights, interests or expectations asserted by the CFMEU are understood in the legislative context, it is clear that the CFMEU has not established any right, interest or legitimate expectation that would be adversely affected by the decision to approve the Agreement which would give it a right to be heard.

[73] We are therefore not persuaded that the Senior Deputy President erred in not giving the CFMEU the opportunity to be heard or to lead evidence in relation to its opposition to the approval of the Agreement.

…

[75] We would make the observation however, that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person of organisation. (Section 590) In this case the Senior Deputy President chose to exercise that power by permitting the CFMEU to be heard on the question of whether the Agreement passed the BOOT.

[76] Finally as to the CFMEU’s submissions that the Senior Deputy President did not give it an opportunity to develop the arguments it wished to develop on the question of a right to be heard, given our conclusions above, we have found it unnecessary to reach a concluded view on this issue. We accept that the CFMEU (as with any person seeking to be heard) is entitled to be given a proper opportunity to develop its argument on the question whether it should be heard. The CFMEU has had full opportunity to develop its argument before us. It did so and its argument did not persuade us that it should have been heard. Therefore, even if its submission is correct, any failure at first instance has now been rectified.’ (transcript and exhibit references omitted)

Failure to provide access to documents

[19] The appellant submitted that:

‘The fundamental issue that arises in this appeal concerns the right of an “organisation” – and I use “right” in its broadest possible way – to have access to relevant documents. In this case, what is known as the form 16 and the form 17 that accompany an application for approval of an enterprise agreement.’ 7

[20] There has been a diversity of decisions by members of the Commission concerning the appropriateness of providing organisations that are not bargaining representatives with copies of the forms F16 8 and F179 that are lodged in support of the approval of an enterprise agreement. For example, Riordan C said in Broadspectrum:

‘I can see no benefit in making the F16 and F17 available to United Voice. In accordance with section 590 of the Act, I formally deny that request. It is not appropriate to allow United Voice to undertake some form of forensic investigation into the approval process of the Agreement in the hope of finding a procedural error. That is the role of the FWC. It is a function that cannot be “contracted out” to United Voice or any other employer or employee association. I accept that access to this type of information is appropriately determined on a case by case basis and that each case must be determined on its merits. In this matter, I can see no useful purpose.’ 10

[21] Lawrence DP, by contrast said in another decision concerning the approval of an enterprise agreement:

‘I can see no reason why the CFMEU should not be allowed to peruse the F19, F20 and F21 documents. It may assist in the submission to be made. They are public documents and contain no confidential information.’ 11

[22] We think it is appropriate that this Full Bench provide guidance on this issue.

[23] The application of the principle of open justice to the proceedings of the Commission was considered in Corfield. In that decision, Bissett C said the following:

‘[21] The principle of open justice applies to the Commission just as much to the Courts. Section 593 above is testament to this. There are, as has been identified above, some legislative exceptions where they are some limitations. These exceptions, however, should not be seen to distract from the application of the principal in general.

[22] The application of the open justice (or open court) principal was considered by Munro J in Moncreiff Fabrications Labour Services Pty Ltd and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [PR925178] where he noted:

“In a recent publication, The Australian Judiciary, Professors Enid Campbell and H.P. Lee, the joint authors of the publication, devoted a chapter to the accountability of Judges and the function of the concept of open hearings. They note that the general rule of common law is that proceedings in a Court of justice must be conducted in open Court. It is claimed that such a rule, described as “inveterate” and “immutable”, has existed in England “for some centuries”.

Of course, and without quoting from the authors, the processes of this Commission are not judicial processes. It is equally clear that the processes are quasi judicial. The Commission’s function has long been associated with the recognition that our process is akin to a judicial process. The authors note that McHugh J has referred to the implication of open justice as an essential feature of the Federal judicial power. According to Gaudron J, open and public inquiry is an aspect of the judicial process. Such procedures have long been an aspect of the Commission’s processes. I have not researched its statutory provenance but I assume it is at least a legacy of the Commission’s antecedent, the Court of Conciliation and Arbitration.

At page 220 of the publication to which I have referred the authors continue, and this I quote:

“The justification for a relatively strict adherence to the general rule of public hearings has usually been based on one of two broad and related principles. In the first place, it is asserted that the exposure of the judicial system to publicity produces certain beneficial effects in the operation of the system. The dual nature of this beneficial (also described as `cathartic’) effect was identified by Bentham: `[P]ublicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.’ We believe that the spur to exertion refers to the tendency of publicity to ensure the maintenance of standards of formality, the conscientious performance of duties, and a certain decorum of procedure. As Lord Widgery stated:

The great virtue of having the public in our courts is that discipline which the presence of the public imposes on the court itself. ... [E]verybody is more careful about what they do, everybody tries just that little bit harder.

Publicity constitutes a `guard against improbity’, in that exposure to public scrutiny and criticism is said to create an environment in which abuses are less able to flourish undetected. The proposition was stated by Lord Diplock thus: `If the way that the courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy.’”

[23] In that matter his Honour was considering the hearing of a matter ‘in chambers’. Despite this different context, his observations remain apposite to the matter before me.’ 12

[24] In ACCC v ABB Transmission, Finkelstein J considered the issue of granting non-parties access to written evidence or documents. He noted the trend in civil litigation to the increased use of written documents:

‘In the belief that the resolution of civil cases will be more efficient and no less fair than in the past (a view which is not universally held) parties are required to submit their evidence in chief in the form of affidavits or written statements (with exhibits) together with written outlines of their submissions both on the facts and the law, well before the hearing. The efficient judge will read the material in private and when the hearing begins will usually announce that fact to the parties, thus relieving them of the burden of reading out evidence and rehearsing their arguments. Oral evidence will usually be confined to the cross-examination of key witnesses. To the bystander who has not read the affidavits, this evidence will be largely meaningless. Counsel’s arguments will be limited to expanding points already made in the written submissions, and will make little sense to any person not familiar with the detail. One unintended result is that the rule of open justice will not fully expose what has taken place in court. Much of what now occurs is no different from a court sitting in private.’ 13

[25] Justice Finkelstein went on to consider what principles should be applied when deciding whether to allow a non-party access to material which has been relied on by a judge:

‘In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by a judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position.’ 14

[26] Partly in the interests of efficiency and partly to reduce the administrative burden on the parties, an increasing amount of the work of the Commission is undertaken ‘in Chambers’ rather than in open court, and decisions are often made ‘on the papers’. This development should not have the unintended result that the activities of the Commission become shielded from the public gaze.

[27] Completed Forms F16 and F17 provide important information on which the Commission relies in determining whether to approve enterprise agreements. The Commission and its predecessors have had a longstanding practice that in the absence of special circumstances or an order to the contrary, Commission files are open to the public.

[28] Completed Forms F16 and F17 should be treated as documents that are freely available to any member of the public who wishes to see them, unless there are exceptional circumstances that would justify an order of confidentiality. We are satisfied that no such exceptional circumstances exist in the matter before us, and the Commissioner was in error in declining to provide the appellant with the documents sought.

Failure to give reasons

[29] The Commissioner did not publish any reasons at all for her (implicit) decision not to accede to the CFMEU’s application to be heard concerning whether the enterprise agreement should be approved.

[30] A FWA Full Bench in Barach set out the general position about the nature of the obligation to give adequate reasons for decision:

‘The duty to give adequate reasons for decision has been considered on many occasions. (See generally Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, at 269-271, 280; Re Astec Pty Ltd (1992) 45 IR 261; Edwards v Giudice [1999] FCA 1836; (1999) 169 ALR 89 at [10] – [11], [44] – [48]; Alchin v Daley [2009] NSWCA 418 at [35]) Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.’ 15

[31] A subsequent FWA Full Bench indicated that this statement of principle requires some elaboration:

‘First, not in every case will reasons for decision be required. Some of the cases in which reasons may not be required were referred to in Housing Commission of New South Wales v Tatmar Pastoral Co. Ltd.([1983] 3 NSWLR at 386C per Mahoney JA [Tatmar] and Re Saizeriya Australia Employment Agreement 2001, PR912618, 6 February 2002 at para 30) It may also be that reasons are not required for framing an order in a particular way, but it will depend on the circumstances (See Health Services Union Victorian Hospitals’ Industrial Association [2008] AIRCFB 311 at para 31) Where reasons are required, and assuming reasons are given, a question may arise as to the adequacy of the reasons. Whether the reasons given are adequate will depend upon the circumstances including the nature of the statutory function being exercised, the decision and the submissions and material in the case.’ 16

[32] The passage in Tatmar cited by the Full Bench noted that in some cases there may not be a need for reasons, for example, in certain procedural applications:

‘In such cases, and in cases of, eg, applications for leave, where the considerations of fact and law are clear, reasons need not ordinarily be given.’ 17

[33] The FW Act gives some guidance on the issue of when written reasons for decision are required. Part 5-1 is headed ‘The Fair Work Commission’. Division 3 of Part 5-1 deals with the conduct of matters before the Commission. This includes (in Subdivision A) s.590 which provides the power of the Commission to inform itself in relation to any matter before it in such manner as it considers appropriate, 18 including by inviting, subject to any terms and conditions it determines, oral or written submissions.19 Subdivision D of Part 5-1 is headed ‘Decisions of the FWC’. Section 601 in that Subdivision relevantly provides as follows:

‘601 Writing and publication requirements for the FWC’s decisions

(1) [Which decisions must be in writing] The following decisions of the FWC must be in writing:

(a) a decision of the FWC made under a Part of this Act other than this Part;
(b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part;
(c) a decision in relation to an appeal or review.

(2) [FWC may give written decisions] The FWC may give written reasons for any decision that it makes.’

[34] The explanatory memorandum says in relation to what is now s.601(2) of the FW Act:

‘Subclause 601(2) provides that FWA may give written reasons for any decision that it makes. It is expected that FWA will provide written reasons for all decisions of significance. An example where a written reason may not be necessary is a procedural decision.’

[35] Particularly given the clear statement of law in Collinsville, and the concession by the CFMEU that it was not a bargaining representative for the enterprise agreement, there is nothing to suggest that the CFMEU was asserting any right to be heard in relation to the approval of the enterprise agreement. Rather, its application to be heard can only be understood as a request that the Commission exercise its discretion to hear from the CFMEU even though the CFMEU did not otherwise have a right to be heard. This would clearly be a decision pursuant to s.590, which falls within Part 5-1 of the FW Act. Such decisions are excluded from the requirement for written decisions contained in s.601. Moreover, such decisions are best described as procedural. As the explanatory memorandum indicates, written reasons may not be necessary in regard to procedural decisions.

[36] We think the Commissioner was not required to issue reasons for her decision not to hear from the CFMEU about the approval of the agreement. Having said that, we do consider that it would have been preferable for the Commissioner to have briefly set out her reasons. This would have made it clear to the CFMEU (and any other observer) why she did not think it appropriate or desirable to hear from them.

Does the enterprise agreement contain terms that contravene s.55?

[37] The appellant submitted that the enterprise agreement cannot be approved because its terms contravene s.55 of the FW Act.

[38] Section 55 of the FW Act relevantly provides:

‘55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2-2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).’

[39] Sections 62 and 63 of the FW Act provide as follows:

‘62 Maximum weekly hours

Maximum weekly hours of work

(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

(a)  for a full-time employee—38 hours; or

(b)  for an employee who is not a full-time employee—the lesser of:

(i)  38 hours; and
(ii)  the employee’s ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours

(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1) (a) or (b)) if they are unreasonable.

Determining whether additional hours are reasonable

(3)  In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a) any risk to employee health and safety from working the additional hours;

(b)  the employee’s personal circumstances, including family responsibilities;

(c)  the needs of the workplace or enterprise in which the employee is employed;

(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(e)  any notice given by the employer of any request or requirement to work the additional hours;

(f)  any notice given by the employee of his or her intention to refuse to work the additional hours;

(g)  the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(h)  the nature of the employee’s role, and the employee’s level of responsibility;

(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

 (j)  any other relevant matter.

…

63 Modern awards and enterprise agreements may provide for averaging of hours of work

(1)  A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed:

(a)  for a full-time employee—38 hours; or

(b)  for an employee who is not a full-time employee—the lesser of:

(i)  38 hours; and
(ii)  the employee’s ordinary hours of work in a week.

(2)  The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).

Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).’

[40] Clause 7.1.1 of the enterprise agreement, as submitted to the Commission, provided that:

‘Ordinary hours will be 40 hours per week, averaged, Monday to Sunday, over a Fifty Two (52) week period. All ordinary hours shall be worked between the hours of 7.00 a.m. and 6.00 p.m.’

[41] The company provided an undertaking to the Commission in the following terms:

‘In respect to Clause 7.1 – Ordinary Hours it is intended to average the 40 ordinary hours per week over a 4 week cycle and not over 52 weeks as expressed in the clause.’

[42] The CFMEU submitted that:

‘This undertaking did nothing to the definition of ordinary working hours as 40 per week. Clause 7 of the Agreement results in employees not receiving in full a benefit provided by the NES. This amounts to a prohibited exclusion of the NES (Canavan Building Pty Ltd [2014] FWCFB 3202 at [36]. Clause 7 is contrary to s.55(1). Its presence in the Agreement meant that the Commission could not have been satisfied under s 186(2)(c) that the terms of the Agreement did not contravene s 55.’ 20

[43] The CFMEU referred to the decision of the Full Bench in Aldi Foods, which dealt with an application to approve three enterprise agreements with ordinary hours in excess of 38 per week. The Full Bench stated:

‘The agreement provisions create the potential for employees to contract to work in excess of 38 hours per week. Of itself, this does not represent an impediment to the approval of the agreements provided the NES safeguards are observed. However, to the extent that any employee who has contracted to work more than 38 hours in a week is then unable to alter that arrangement to meet a particular personal circumstance, and the issue is incapable of resolution other than at the discretion of ALDI, the agreements may be considered to operate in contravention of the NES.

Whilst we think this situation is unlikely to arise, and in any event the concern might have been addressed by way of an undertaking, we do not consider the Commissioner’s conclusion was attended with error of an appealable nature. The Commissioner raised concerns in relation to hours of work in the context of the NES and decided that the agreements could not be approved without undertakings to address those concerns. The provisions of the agreements are clearly inconsistent with the National Employment Standard concerning working hours contained in s.62 of the Act, and therefore the Commissioner could not be satisfied that the terms of the agreements did not contravene s.55 (see s.186(2)(c)).’ 21

[44] The respondent submitted that s.55(2) of the FW Act provides that an enterprise agreement may include any terms that the award or agreement is expressly permitted to include by a provision of Part 2-2 (which deals with the NES). Section 63 directly contemplates ordinary hours being established through an enterprise agreement, including through an averaging process. Section 63(2) expressly provides that the terms of an enterprise agreement may provide for average weekly hours that exceed 38 hours across a specified period if the excess hours are reasonable for the purposes of subsection 62(1).

[45] We agree with the respondent that the mere fact that an enterprise agreement provides for an average of ordinary hours above 38 per week does not ipso facto mean that it cannot be approved. However, consistent with the decision in Aldi, to the extent that any employee who has contracted to work in excess of 38 hours in a week is then unable to alter that arrangement to meet a particular personal circumstance, the agreement would be inconsistent with the NES. We note that this is a matter that could probably be resolved through an appropriate undertaking.

[46] Accordingly, we are satisfied that the enterprise agreement should not have been approved because its terms contravene s.55 of the FW Act.

[47] Given our finding on this matter, it is unnecessary to consider the other grounds on which the appellant submitted that the enterprise agreement failed to meet the statutory tests for approval.

Conclusion

[48] This matter raises significant issues that have broad application to the manner in which the Commission deals with applications to approve enterprise agreements. Accordingly, we consider permission to appeal should be granted. Given the errors we have identified, we uphold the appeal, and quash the decision to approve the enterprise agreement. We will remit the application for approval of the enterprise agreement to Commissioner Bissett.

SENIOR DEPUTY PRESIDENT

Appearances:

R Reitano of counsel with S Hayward for the Construction, Forestry, Mining and Energy Union.

A Britt of counsel with R Grace for Ron Southon Pty Ltd.

Hearing details:

Sydney.

2016.

November 23.

 1   Fair Work Act 2009 (Cth) s.604(1).

 2   O’Sullivan v Farrer (1989) 168 CLR 210; Coal & Allied v Lawler [2011] FCAFC 54 [44]-[46].

 3   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

 4   [2010] FWAFB 5343 [27].

 5   See also CFMEU v AIRC (1998) 89 FCR 200; Wan v AIRC (2001) 116 FCR 481.

 6   Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940.

 7   PN15.

 8   Application for approval of an enterprise agreement.

 9   Employer’s statutory declaration in support of an application for approval of an enterprise agreement.

 10   Broadspectrum (Australia) Pty Ltd T/A Broadspectrum [2016] FWC 7936 [34].

 11   Application for approval of the Telum Contract Labour Pty Ltd/AWU WestConnex Project Civil Construction Greenfields Agreement 2016 [2016] FWC 8161 [35].

 12   Justin Corfield [2014] FWC 4887.

 13   Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited No.3 [202] FCA 609.

 14   Ibid [7].

 15   Barach v University of New South Wales [2010] FWAFB 3307 [16].

 16   Transport Workers’ Union of Australia v WA Freightlines Pty Ltd [2011] FWAFB 3863 [10].

 17   Housing Commission of New South Wales v Tatmar Pastoral Co. Ltd. [1983] 3 NSWLR 378, 386C per Mahoney JA.

 18   Fair Work Act 2009 (Cth) s.590(1).

 19   Fair Work Act 2009 (Cth) s.590(2)(b).

 20   Appellant’s outline of submissions [28].

 21   ALDI Foods Pty Ltd v Transport Workers’ Union of Australia (2012) 227 IR 120 [41]-[42].

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