28 Apr DOCUMENTS LODGED IN SUPPORT OF ENTERPRISE AGREEMENTS CONSIDERED PUBLIC DOCUMENTS

The Full Bench of the Fair Work Commission in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd [2016] FWCFB 8413 has held that documents filed in the course of applying for approval of an Enterprise Agreement are public and therefore, can be accessed by a non-party.

Background – The Facts

Ron Southon Pty Ltd (the “Company”) applied to the Fair Work Commission (the “FWC”) for approval of an Enterprise Agreement to be called the Ron Southon Pty Ltd Enterprise Agreement 2016-2020 (the “Agreement”).

After this application was made, a Legal/Industrial Officer of the Construction, Forestry, Mining and Energy Union (the “CFMEU”) sent an email to the FWC requesting that the FWC provide them with the application documentation (including the Company’s application (Form F16) and declaration (Form F17)).  The FWC said they could not provide the documentation “immediately” on the basis that the CFMEU was not listed as a “Union Bargaining Representative” on the application form, however the FWC said they would seek advice about the documents provision.

The Officer replied by asking that the Commissioner be given information which demonstrated their “clear interest” in the matter.  This included that the CFMEU:

1.  has constitutional coverage and a long history of industrial representation of the work proposed to be performed under the Agreement;

2.  is a party to the Building and Construction On-Site Award 2010 (the “Award”);

3.  will likely have other members employed in classifications cover by the Agreement in the future; and

4.  will have a right to appeal any decision in the proceedings under s604 of the Fair Work Act 2009 (the “FW Act”).

The FWC responded by requesting a list of names of members who will be covered by the Agreement in order to establish that the CFMEU is a bargaining representative.  However, the Officer could not provide this, as the CFMEU did not have any members “employed by the Company at the current time”. 

The Officer said that if the Commissioner would not hear the CFMEU in the matter, the Commissioner might choose to consider that the CFMEU does not believe certain provisions of the Agreement are compliant with the FW Act (i.e. they are potentially inconsistent with the National Employment Standards (“NES”) and employees under the Agreement may not be better off overall compared to the Award).

The Agreement was subsequently approved and the Officer was informed that “the Commissioner had considered the matters raised in his correspondence, and the file had been closed”.

The CFMEU appealed this decision on several grounds, one of which, related to the Commissioner’s decision not to give the CFMEU access to the Company’s application, declaration and accompanying material.

The Decision

The Full Bench of the FWC decided that the Commissioner was in error in not allowing the CFMEU access to the documents sought.

In reaching its decision, the Full Bench noted that there had been differing decisions made by members of the Commission concerning the “appropriateness” of providing copies of Forms F16 and F17 to organisations who are not bargaining representatives and thought it “suitable” to provide guidance on the issue.

The Full Bench considered the concept of “open justice” referring to the decision in Corfield where Justice Bisset said that “the principle of open justice applied to the Commission just as much as to the Courts” and that publicity “guards against improbity” and “creates an environment where abuses are less able to flourish undetected”. 

They also considered comments made in ACCC v ABB Transmission where Justice Finkelstein said “there is a strong presumption in favour of allowing any member of the public who wished to do so, to inspect any document or thing that is put into evidence” and inspection should only be refused in “exceptional circumstances” so the manner in which the case has been conducted is known not only to the parties.

The Full Bench stated that although an increasing amount of the work of the Commission is undertaken in “Chambers” rather than open Court, this “should not have the unintended result that the activities of the Commission become shielded from the public gaze”.  They said that Forms F16 and F17 provide “important information on which the Commission relies in determining whether to approve enterprise agreements” and that “the Commission and its predecessors have had a long standing practice, that in the absence of special circumstances or an order to the contrary Commission files are open to the public”.

The Full Bench concluded by saying that Forms F16 and F17 “should be treated as documents 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”.  They said there were no such exceptional circumstances and that the Commissioner should have allowed the CFMEU access to the documents requested.

Other interesting points to come from the decision

The Full Bench made some other interesting findings, including that:

1.  the CFMEU had not established any “right, interest or legitimate expectation” (as listed above) that would be adversely affected by the decision to approve the Agreement which would give it a right to be heard; and

2.  the Commissioner was not required to provide reasons for their decision to not hear the CFMEU as:

–  the decision was made pursuant to s590 of the FW Act (i.e. powers of the FWC to inform itself) which falls within Part 5-1 of the FW Act, and therefore, excluded from the requirement for written decisions contained in s601 of the FW Act; and

–  the decision was procedural, which the explanatory memorandum indicates written reasons may not be necessary for.

The Full Bench also considered whether there was an issue with a clause of the Agreement which provided that “Ordinary hours will be 40 hours per week, averaged, Monday to Sunday, over a 52 week period”. 

The Full Bench said that “the fact that an Enterprise Agreement may provide for an average of ordinary hours above 38 hours per week does not ipso facto mean that it cannot be approved.  However, 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”.  Accordingly, the Full Bench held the Agreement should not have been approved and quashed the Commissioner’s decision to approve it.

What this means for employers implementing Enterprise Agreements and non-parties wanting to object

This decision clarifies the position regarding non-party access to documents submitted in the approval process for Enterprise Agreements, that any documents employers lodge with the FWC will be available for the public to access.

It also highlights the difficulty non-parties have in objecting to the approval of an Enterprise Agreement before a decision has been made by the FWC, and reminds employers of the importance of ensuring that terms of an Enterprise Agreement are in line with the relevant minimum standards set by, for example, the NES and any relevant Modern Award.

If you need advice or assistance in regards to preparing, negotiating, applying for or introducing an Enterprise Agreement, contact the team at HR Law.