Union to challenge One Key
Landmark decision confirms Union can have a say on non-union EA’s
Wednesday 17 January 2018
Mining Union the CFMEU has won the right to challenge an Enterprise Agreement agreed to between Labour Hire business One Key Resources and some non-unionised Queensland coal miners.
In a significant case for the resources sector, the CFMEU successfully argued in the Fair Work Commission (FWC) that despite not being the nominated representative of the employees, they should be allowed to make representations to the FWC before it approves the EA.
Under the Fair Work Act, a Union can only be heard on matters where it is not the nominated representative if they can either prove that their representation was required for procedural fairness, or the FWC invites them.
The CFMEU argued that because it has members who are employed by various companies in the One Key Group in the coal mining industry, and because they possessed detailed knowledge of the Black Coal Mining Industry Award they should be heard by the commision.
In response, the one Key Group argued that the CFMEU "had no knowledge" of the bargaining that occurred with its employees and that their involvement would only delay the approval of the EA and offer little assistance to the FWC.
In his decision, Commissioner Booth ruled that while there was no case for the involvement of the CFMEU on the basis of procedural fairness, their representations would be of value to the Commission's decision-making process.
“The CFMEU has not provided sufficient evidence to demonstrate that approval of the Proposed Agreement would impact any right, interest or legitimate expectation held by the CFMEU,” he said.
“ I am not satisfied that the CFMEU should be granted standing as a matter of procedural fairness.
“[However]the Collinsville Decision makes explicit that despite no 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.
“This could include the CFMEU being heard on all aspects as to agreement approval including the Better Off Overall Test (BOOT).
“Ensuring compliance with the BOOT will be assisted by inviting the CFMEU to be heard.
“The CFMEU will be invited to provide written and oral submissions and is entitled to appear as a contradictor and be heard on the application.”