Application for approval of the Top End Consulting Pty Ltd Agreement 2020

[2020] FWC 6261

[2020] FWC 6261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.615—The President may direct a Full Bench to perform a function etc.

Application for approval of the Top End Consulting Pty Ltd Agreement 2020
(AG2020/2286)

JUSTICE ROSS, PRESIDENT MELBOURNE, 23 NOVEMBER 2020

Application AG2020/2886 – Top End Consulting Enterprise Agreement 2020 – Referral to a Full Bench – Fair Work Act 2009 (Cth) – s.615.

[1] On 4 August 2020 Top End Consulting Pty Ltd (the Applicant) made an application for the approval of a single enterprise agreement, the Top End Consulting Enterprise Agreement 2020 (the Top End Agreement 2020), under s.185 of the Fair Work Act 2009 (the Application). The Application was allocated to Deputy President Lake for determination.

[2] The Top End Agreement 2020 contains a number of unusual terms including provisions which provide for the voluntary working of hours which would ordinarily attract penalty payments (such as overtime hours, work on weekends and public holidays). In submissions to the Deputy president the Applicant has conceded that such issues may mean that the Application does not pass the ‘better off overall test’ (the BOOT) (see ss.186(2)(d) and 193 of the Act); but submits that if the Agreement does not meet the BOOT then it can still be approved pursuant to s.189. Section 189 relevantly provides:

‘189 FWC may approve an enterprise agreement that does not pass better off overall test--public interest test

Application of this section

(1) This section applies if:

(a) the FWC is not required to approve an enterprise agreement under section 186; and

(b) the only reason for this is that the FWC is not satisfied that the agreement passes the better off overall test.

Approval of agreement if not contrary to the public interest

(2) The FWC may approve the agreement under this section if the FWC is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

(3) An example of a case in which the FWC may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.’

[3] On 20 November 2020 the Deputy President referred the Application to me to consider whether it should be referred to a Full Bench for determination, pursuant to s.615 of the Act.

[4] Section 615 of the Act provides that I may direct a Full Bench to perform a function or exercise a power,:

‘615  The President may direct a Full Bench to perform function etc.

(1)  A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.

Note: The President gives directions under section 582.

(2)  The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.

(3)  To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.’

[5] The issue for determination is whether I am satisfied that it is in the public interest to refer the Application to a Full Bench. The expression ‘in the public interest’, when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. 1

[6] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under s 615A.

[7] Section 577 provides as follows:

‘The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).’

[8] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and ‘equity, good conscience and the merits of the matter’.

[9] Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.

[10] In relation to the potential referral of the Application under s.615 Top End submits, in essence, that the public interest is not enlivened in this case having regard to:

•  the delay occasioned by a Full Bench referral in circumstances where is has been some months since the Agreement was made;

•  the matter has been heard by the Deputy President and the referral to a Full Bench would be contrary to the efficient conduct of the proceedings;

•  the application of s.189 to arrangements of the type included in the included in the Top End Agreement is not unprecedented and similar arrangements have been approved in other proceedings; and

•  any person aggrieved by the Deputy President’s decision in respect of the Application would have recourse to an appeal.

[11] As to the delay in the proceedings I note the Applicants’ concession that:

‘the delay to date is no criticism of the Commission as it was the Applicant who made the request to be able to be heard further on the various concerns raised by the Commission by the proffering of undertakings and being allowed the opportunity to put on evidence and make further submissions in relation to s.189’. 2

[12] I also note the Applicant’s acknowledgement of the fact that ‘there may be little Full Bench authority which specifically applies s.189’. I agree with that assessment.

[13] I have had regard to the Applicant’s submissions. However, contrary to the views expressed I am satisfied that it is in the public interest to refer the Application to a Full Bench. The Application potentially raises some important issues for determination, including the proper construction and application of s.189 of the Act.

[14] The proper construction and application of s.189 has not yet received detailed consideration by a Full Bench. Such consideration will facilitate the consistent application of the provision; a matter which, in my view, enlivens the public interest.

[15] I direct that the Application be referred to a Full Bench for determination. I am conscious of the Applicant’s desire to have the Application determined expeditiously. In circumstances where a s.615 determination is made, s.615B(3) provides that the Full Bench, when performing the function or exercising the power, take into account,:

‘(a) everything that occurred before the FWC; and

(b) everything that the FWC did;

in relation to the matter before the Full Bench began to perform the function or exercise the power.’

[16] I will also request that the presiding Member of the Full Bench I constitute to determine the matter accords it priority and that it is dealt with expeditiously.

PRESIDENT

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 1   O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

 2   Applicant submission, 18 November 2020.