DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

JLW Interiors Pty Ltd
(AG2016/4111)

Application for approval of the JLW Interiors Pty Ltd Enterprise Agreement 2016 - 2020.

Introduction

[1] JLW Interiors Pty Ltd (“JLW Interiors”) has made application for approval of the JLW Interiors Pty Ltd Enterprise Agreement 2016 – 2020. It is a single enterprise agreement.

[2] The application indicates that there were no Union bargaining representatives involved in the process of making the Agreement, however, several of the employees to be covered were indicated to be employee bargaining representatives.

[3] After receiving the application the Commission received an email from the Construction & General Division, NSW Branch, of the Construction, Forestry, Mining and Energy Union (“CFMEU”) indicating that it objected “to the certification of the proposed agreement,” 1 and requesting the Commission provide it with the following:

“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.” 2

[4] The Commission subsequently contacted the Applicant in regard to this request and received a response from the Master Builders’ Association of New South Wales (“the MBA”), on behalf the Applicant, advising that it objected to the documents being provided to the CFMEU on the basis that it had no standing in the matter as none of the employees who “voted to make this agreement nominated the CFMEU as their bargaining representative.” 3 However, the CFMEU subsequently advised that it continued to press its request and the matter was accordingly set down for hearing.

[5] Mr Iain Jarman from the MBA appeared on behalf of the Applicant. Mr Tom Fischer appeared on behalf the CFMEU.

The Evidence and Submissions

[6] Both parties initially provided written submissions in accordance with the directions issued. However, it subsequently became apparent that other recent Commission decisions dealing with similar issues potentially warranted consideration in the context of the present application. The Commission accordingly indicated that it was prepared to allow the parties to supplement their initial submissions, given these developments. Additional submissions were accordingly provided by the CFMEU on 23 November 2016 and 10 January 2017, and by the MBA on behalf of the Applicant on 30 November and 10 January 2017.

[7] The CFMEU submits, in summary, that the conduct of Commission proceedings are based on the principle of “open justice” and this is embodied in section 593(2) of the Fair Work Act 2009 (Cth) (“the Act”) which states, “If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).” The CFMEU submits this broad statement of approach extends to providing access to initiating documentation. It continues to submit that it is of particular importance in the present context, given that applications for approval of enterprise agreements are principally dealt with “in chambers.” The CFMEU also acknowledged that while it has coverage of the employees to be covered by the proposed Agreement, none of those employees are currently members of the Union, and it was not a bargaining representative for the Agreement.

[8] JLW Interiors submits, in response, that as the CFMEU is not a bargaining representative it has no right to be heard, and it should not be permitted to participate any further in the proceedings dealing with the application. In the same context it should not be given access to the documentation it now seeks. It relies on the decision in CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940 in support of this submission.

[9] The CFMEU subsequently made reference to a series of recent decisions handed down by Deputy President Lawrence, including the decision dealing with the application for approval of the TCQ Labour Pty Ltd/AWU Civil Construction Metro Greenfields Agreement 2016 [2016] FWC 8186. It submits this decision lends weight to the position that the relevant documents are public documents, and do not contain confidential information, and should be made readily available to the public, upon request. It also noted that a Full Bench of the Commission was also now dealing with the same issues following an appeal from an earlier decision of Commissioner Cirkovic. 4

[10] JLW Interiors responded by indicating that the decisions handed down by Deputy President Lawrence dealt with a series of applications for approval of greenfields agreements, and could be distinguished on that basis from the application in the present matter. It also submitted that the Commission should not defer handing down a decision in this matter pending an outcome of the Full Bench determination.

[11] The CFMEU subsequently made contact with the Commission again to confirm that the Full Bench decision in CFMEU v Ron Southon Pty Ltd [2016] FWCFB 8413 (“Southon”) had now been handed down, and it had overturned the earlier decision of Commissioner Cirkovic to approve the Ron Southon Pty Ltd Enterprise Agreement 2016 – 2020. It submits the decision is directly relevant to the present matter, and the Full Bench also made clear that it was intending in its decision to provide guidance of broader application about the release of documents, given recent Commission decisions which have indicated some divergence of view about this issue. The CFMEU referred, in particular, to the following extracts from the Full Bench decision:

“[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.” 5

[12] The CFMEU concluded by indicating that there was “no obvious reason” 6 why the present application should be treated any differently from the approach adopted by the Full Bench in the Southon matter. It also noted that no application for confidentiality, based on exceptional circumstances, had been made in the present matter.

[13] The MBA finally submitted, in response, that the Full Bench decision in Southon can be distinguished on several grounds. Firstly, Commissioner Cirkovic had already determined the application without providing the CFMEU with an opportunity to be heard. It submits this is different from the circumstances in the present matter. Secondly, the forms F16 and F17 had already been provided to the CFMEU by the Commission’s registry staff, arguably leaving the Full Bench with no other option but to determine that the documents should now be freely available. It also submits in this context that the decision in Southon should be confined to its circumstances, and it is not appropriate to treat the decision “as a global authority on the status of the Form F16 and Form F17 documents.” 7 Thirdly, the matter had now been remitted to Commissioner Bissett, who had invited further submissions from the parties regarding the confidentiality of anything contained in the documents. In its submission this is an important consideration, and principles of open justice also need to be considered in conjunction with the requirement to protect employee privacy, particularly when individual employees have nominated themselves, or others, as bargaining representatives. It also noted that the Commission had its own privacy policy and it should not act in contravention of those policies.

[14] The MBA continued, in conclusion, to maintain its objection on behalf of the Applicant to the release of the form F16 and F17 documents to the CFMEU.

Consideration

[15] The submissions of the parties have been summarised above and are not restated now. As indicated, the Commission has also had the benefit of being able to consider other recent Commission decisions dealing with similar issues. Without going into further unnecessary detail I am satisfied that the Full Bench decision in Southon is directly on point in regard to the present matters at issue. I refer in particular to the conclusions of the Full Bench at paragraphs [26] – [28], which are set out at an earlier point in this decision. The Full Bench also made clear at [22] that it was intending in its decision to provide broad guidance on the issue of providing access to documents. I am not satisfied, in response, that there is anything in the present matter that warrants it being distinguished from the circumstances under consideration by the Full Bench in Southon. It follows that the CFMEU should be provided with the documents sought.

[16] However, the Full Bench in Southon ultimately decided that the application for approval of the Agreement should be referred back to a single Commission member. In a decision handed down on 7 February 2017 Commissioner Bissett accordingly concluded at [4]:

“[4] The CFMEU has advised me that it seeks access to the Forms F16 and F17 filed by Ron Southon Pty Ltd (Ron Southon) in connection with the approval of the Agreement. Out of an abundance of caution I sought the views of Ron Southon and, in particular, if there were any “exceptional circumstances” that might count against the presumption of access to the Forms as found by the Full bench in Ron Southon. 8

[17] I intend to adopt a similar course in the present matter. JLW Interiors is therefore to inform my Associate by close of business on 26 May 2017 whether there are any exceptional circumstances that need to be considered before access to the documents is provided to the CFMEU. The same opportunity will also be provided to the employee bargaining representatives. JLW Interiors and/or the employee bargaining representatives are also to provide any written submissions in regard to this consideration by the same date of 26 May 2017. The CFMEU will then have until close of business on 31 May 2017 to provide any written submissions in response.

[18] I will then consider and deal with those submissions as quickly as possible. I am obviously also aware of the length of time that has now passed since this application was originally made. Once this issue about provision of the documents have been determined I will accordingly then give further consideration to how the substantive application can be progressed as quickly as possible.

COMMISSIONER

Appearances:

I Jarman of the Master Builders Association of NSW for the Applicant.

T Fischer for the Construction, Forestry, Mining and Energy Union (intervening).

Hearing details:

2016.

Melbourne and Sydney (video hearing):

October 19.

 1   Email correspondence from Construction, Forestry, Mining and Energy Union – Construction & General Division, NSW Branch to Fair Work Commission, dated 5 August 2016.

 2   Ibid.

 3   Email correspondence from Master Builders Association of New South Wales to Fair Work Commission, dated 12 September 2016.

 4   [2016] FWCA 6773.

 5   [2016] FWCFB 8413 at [26]-[28].

 6   Final written submissions of the Construction, Forestry, Mining and Energy Union, dated 10 January 2017 at [12].

 7   Final written submissions of the Master Builders Association of New South Wales, dated 10 January 2017 at [22].

 8   [2017] FWC 775.

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