STATEMENT

Fair Work Act 2009
s.615 - Direction by the President to a Full Bench to perform function etc

Auld and ors
v
Teekay Shipping (Australia) Pty Ltd
(U2019/2270 and ors)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER LEE

MELBOURNE, 27 FEBRUARY 2020

Direction by the President to a Full Bench - Fair Work Act 2009 (Cth) - ss 394, 615 – question to be determined by Full Bench

[1] In a judgment published on 11 February 2020 in Teekay Shipping (Australia) Pty Ltd v Auld 1the Full Court of the Federal Court directed that a writ of mandamus issue requiring the Commission to ‘answer, by decision, such question or questions which were posed to it for answering by the Commission’s President under the Act.’2

[2] The background to this matter may be shortly stated.

[3] Mr Auld and a number of other employees were dismissed by Teekay Shipping (Australia) Pty Limited (Respondent) and applied for an unfair dismissal remedy. The unfair dismissal proceeding was allocated to Commissioner Johns.

[4] Section 396 of the Fair Work Act 2009 (Act) operates in relation to an application for an order for an unfair dismissal remedy and relevantly requires the Commission to decide whether a dismissal to which an application relates was a case of genuine redundancy before considering the merits of the application. In this matter the Respondent contends that the Applicants were not ‘unfairly dismissed’ because the termination of their employment was a case of ‘genuine redundancy’. The Applicants dispute the Respondent’s characterisation of the terminations.

[5] It is common ground that the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015 (Agreement) applied to the Applicants’ employment. The Agreement was approved by Deputy President Kovacic on 19 October 2017 3 (the Approval Decision). Clause 9 of the Agreement deals with consultation.

[6] The Approval Decision addressed a number of matters which had earlier been raised with the parties relating to the Agreement. In respect of the consultation term, the Approval Decision stated at [5]:

‘Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.’

[7] As is apparent from the Approval Decision the Deputy President formed the view that clause 9 was not a ‘consultation term’ within the meaning of s.205 of the Act and considered, pursuant to s.205(2), that the model consultation term be taken to be a term of the Agreement.

[8] The preliminary matter before the Commissioner was whether the Applicants’ dismissal was a case of ‘genuine redundancy’ before considering the merits of the applications. 4 In determining that issue, the Commissioner was required to consider, among other requirements, whether or not the Respondent has complied with any consultation obligation as required by s.389(1)(b) of the Act. The preliminary question to be determined was whether the model consultation term, taken to be a term of the Agreement, applies in substitution of, or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCFB 1074
Decision Date: 27 FEBRUARY 2020

CaseChat Overview and Summary

Mr Auld and other employees were dismissed by Teekay Shipping (Australia) Pty Ltd (Respondent) and applied for unfair dismissal remedy. The Respondent contended that the dismissals were cases of genuine redundancy, while the applicants disputed this characterisation. The dispute centred on whether the dismissals complied with the consultation obligations under the Fair Work Act 2009 and the Teekay Shipping (Australia) Pty Ltd Seagoing Ratings Dry Cargo Enterprise Agreement 2015 (Agreement). The preliminary matter before the Commissioner was whether the dismissals were genuine redundancies before considering the merits of the applications. The Commissioner considered the issue of general importance as there had been no definitive determination of whether the model consultation term entirely sets aside a non-compliant consultation term in an enterprise agreement. The President directed the Full Bench to answer the question of whether the model consultation term applies in substitution of, or in conjunction with, clause 9 of the Agreement.

The Full Bench answered the referred question by concluding that the model consultation term is not taken to be a term of the Agreement, and therefore, the question does not arise. However, if the model consultation term is taken to be a term of the Agreement, it applies in conjunction with clause 9. The answer to the referred question will not resolve the underlying controversy, which is whether the dismissal of each applicant was a case of genuine redundancy. Whether the Respondent complied with any obligation in the Agreement to consult about the redundancy will depend upon identifying the precise obligation under the Agreement with which it was required to comply and determining whether it complied. Both these matters are beyond the scope of the question the subject of the President's direction. The Full Bench provisionally views the most appropriate and expeditious course is for the applications to be returned to Commissioner Johns for hearing and determination.

The Full Bench directed that the applications return to Commissioner Johns for hearing and determination. The parties will be invited to respond to the provisional view at the hearing listed for 9:30 am on Tuesday 3 March 2020.

Orders