A MAJOR services provider has had its enterprise agreement successfully appealed by a union not party to the agreement, after a Full Bench of the Fair Work Commission found that private email exchanges between the commission and the employer, deemed ex parte communications of interest to the union, denied it procedural fairness.

While the decision highlights the extent to which ex parte communications between the commission and parties to an agreement are (or are not) permissible, it has however created controversy given it is arguable that the appealing union, United Voice, (UV) had no right to be heard on the matter given it was not a bargaining representative and therefore not party to the agreement.

Background

Diversified services provider Broadspectrum, a member of AMMA, had an enterprise agreement for its new ‘justice’ business unit approved in November 2016 by Commissioner Bernie Riordan.

Despite not being a bargaining representative to any employees covered by the new agreement, United Voice had successfully argued they had a right to be heard in relation to its application for approval on the basis that they are the principal union in the industry and had other members employed by Broadspectrum.

Commissioner Riordan heard the union’s appeal of the agreement on several grounds but ultimately found the agreement was genuinely agreed.

During proceedings, however, it was revealed that communications between Commissioner Riordan’s chambers and Broadspectrum took place without the knowledge of United Voice.

This communication involved the commissioner asking a number of questions which aided him in eventually finding that the agreement had been genuinely agreed by the employees, and that the group was fairly chosen.

Union ‘denied procedural fairness’

The Full Bench, comprising Deputy President Val Gostencnik, Deputy President John Kovacic and Commissioner Tim Lee, heard United Voice’s appeal on the grounds that the ex parte communications may have given rise to a reasonable apprehension of bias.

The Full Bench instead found, however, that the communications was ‘a classic case of denial of procedural fairness’:

Although it is true that United Voice was not a party to the proceedings before the Commissioner in the conventional sense, it had nonetheless raised issues concerning the application by Broadspectrum for the approval of the Agreement and it had been given an invitation by the Commissioner to make submissions in relation to those issues,” the Full Bench said in its decision.

 “While engaging in the ex parte communications, the Commissioner does not appear to have made any decision about UV’s right to be heard or upon the merits of the matters raised by UV in opposition to the approval of the Agreement.  We consider these circumstances give rise to a reasonable expectation on the part of UV, that it would at the very least be ‘copied in ‘ on or otherwise informed of, communications passing between the Chambers of the Commissioner and Broadspectrum concerning the very matters about which it was agitating.

 “Armed with knowledge of the ex parte communications, UV could have sought leave to reply to the matters raised. Alternatively, it could have applied to the Commissioner that he recuse himself from determining the application on the ground of a reasonable apprehension of bias. Neither course was available to UV because it had no knowledge of the communications. That in our opinion, is classically a case of a denial of procedural fairness.”

 The Full Bench granted United Voice’s appeal and remitted the matter for determination.

Click here for the full decision: United Voice v Broadspectrum (Australia) Pty Ltd T/A Broadspectrum [2017] FWCFB 871 (15 February 2017)

 Implications for employers

 This decision provides some clarity around ex parte communications and specifically the extent to which they would be deemed as denying a party to an agreement procedural fairness.

In addition, this decision demonstrates a flawed approach within Australia’s enterprise bargaining and agreement making framework, and reinforces AMMA’s advocacy for reform that would lead to a simpler, less technical or overly-legalistic system.

AMMA argues that:

  • In principle, it is not the mark of a fair agreement making system that a union which is not a party to the agreement, nor a nominated bargaining representative for employees covered by an agreement, should be able to intervene and appeal.We agree with Broadspectrum’s description of United Voice’s intervention as a ‘fishing expedition’ – i.e. an attempt to have the agreement overthrown and insert itself into the negotiation process.
  • It is not the mark of a fair agreement making system that an employer should potentially have to bear the costs and delays associated with re-negotiating an enterprise agreement and applying for its approval, on the basis of the Fair Work Commission making an error – in this case apparently denying the union procedural fairness.

More generally, AMMA is concerned about the growing instances of Full Bench’s overturning approval of decisions by individual members of the tribunal, particularly where the individual member appears to have exercise ‘common sense’ and appropriate discretion – such as in this case where Commissioner Riordan may have felt United Voice did not need to be privy to the email exchanges given the union was not a party to the agreement.

These types of adverse outcomes have a negative impact on employment in Australia and are exactly what AMMA hopes our system can avoid in the future through focusing enterprise bargaining, expanding options for agreement making and reforming the FWC and its focus.

These three priorities are part of AMMA’s “Five Urgent Workplace Reforms” which we argue will add balance to Australia’s workplace relations system. For more information about this campaign, click here.