ENTERPRISE AGREEMENTS – employee organisation coverage – ss.176, 201, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission noted that the Unity Water Industry Field/Outdoor Employees (Operations and Maintenance – Non-Trade) Enterprise Agreement No 1 (the Agreement) covered the Construction Forestry Mining and Energy Union (CFMEU) – appeal by Northern SEQ Distributor – Retailor Authority t/a Unitywater (Unitywater) and Australian Workers’ Union (AWU) – at first instance Commission determined that Mr Grocott was eligible to be a member of the CFMEU and Agreement covered CFMEU based Mr Grocott’s job – subject of appeal was whether primary purpose of Mr Grocott’s employment was to operate an excavator rather than be a Crew Member – Unitywater submitted primary purpose of Mr Grocott’s employment needed to be determined – further submitted that in focusing on Mr Grocott’s work as an excavator driver the Commissioner erroneously focused on an aspect of his work in isolation – AWU submitted as the CFMEU was not entitled to represent the industrial interests of Mr Grocott the notice given by the CFMEU under s.183 was void and had no effect – contended that question to be determined was whether it was able to represent his industrial interests in relation to work that will be performed under the Agreement – further submitted the assessment of how work was to be performed or arranged was required – CFMEU submitted permission to appeal should not be granted because matter in dispute did not rise any higher than the interests of the parties – further submitted there was no error in determining what was the primary purpose of Mr Grocott’s employment – posited AWU did not have the requisite standing to appeal – Full Bench satisfied AWU had sufficient interest to be characterised as a person aggrieved by first instance decision and it has rights that co-exist with CFMEU – not satisfied Commissioner’s Position Description conclusions manifested any error – not satisfied that the Commissioner erred in concluding that the job description did not determine the primary purpose for which Mr Grocott was employed – not satisfied the Commissioner erred in the factual findings he made – not satisfied the Commissioner erred in observing his decision would have limited consequences – not satisfied it is in the public interest to grant permission to appeal – not persuaded there are other considerations which warrant permission to appeal be granted – held Decision turns on its own facts and does not raise any issue of importance or general application, its relevance is limited to particular factual matrix before the Commission – the manner in which parties chose to have matter determined limited evidentiary material before Commission – held Commissioner correctly stated and applied applicable test in relation to whether an employee organisation is entitled to represent industrial interest of particular employee and reached the correct conclusion – there was neither sufficient doubt to warrant decision reconsideration nor substantial injustice – permission to appeal refused. Appeal by Northern SEQ Distributor-Retailer Authority against decision of Roe C of 20 January 2017 [[2017] FWCA 454] Re: Construction, Forestry, Mining and Energy Union
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