Auld v Teekay Shipping (Australia) Pty Ltd
[2020] FWCFB 1074
•27 FEBRUARY 2020
| [2020] FWCFB 1074 |
| FAIR WORK COMMISSION |
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 | 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 in conjunction with, clause 9 of the Agreement?
[9] The Commissioner considered that the matter raised an issue of general importance as there had been no definitive determination of the issue of whether the model consultation term entirely sets aside a non-compliant consultation term in an enterprise agreement. The Commissioner drew this matter to the attention of the President noting that the parties were not opposed to the issue being referred to a Full Bench.
[10] Pursuant to s.615 of the Act the President directed this Full Bench to answer the following question:
‘Does the model consultation term, taken to be a term of the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015, apply in substitution of, or in conjunction with, clause 9 of that agreement?’ (the referred question)
[11] The direction is contained in a memorandum from the President to members of the Full Bench dated 24 June 2019 and is Attachment 1 to this statement. The referred question was framed by consent of the parties as set out in Attachment 2 to this statement.
[12] Submissions were filed in relation to the issue in contention. 5 An oral hearing took place on 24 July 2019. The parties’ submissions may be shortly summarised. We issued a decision on 2 September 2019 dealing with the referred question.6 We had intended the applications would return to the Commissioner to determine whether each dismissal was a case of genuine redundancy, informed by our answer to the referred question. The Respondent’s application to the Court meant that this did not occur.
[13] As mentioned earlier, the Federal Court has required that we answer, by decision, the ‘referral question.’ With respect, the referral question was answered in our decision of 2 September 2019. However, we will, of course, comply with the Court’s order.
[14] It is our provisional view the referred question be answered as follows:
1. For the reasons set out at [75]-[97] of our decision in Auld and Ors v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047, the question does not arise because the model consultation term is not taken to be a term of the Agreement.
2. If we are wrong in our conclusion and the model consultation term is taken to be a term of the Agreement, then for the reasons set out at [46]-[73] of Auld and Ors v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047, and further to the answer given at [74] thereof, the model consultation term taken to be a term of the Agreement applies in conjunction with clause 9 of the Agreement. Clause 8 of the Seagoing Industry Award 2010 operates as an incorporated term of the Agreement and will have effect subject to any inconsistency with an express provision of the Agreement.
[15] However, we would observe that the answer we give to the referred question will not resolve the underlying controversy. It will merely identify the provision or provisions of theAgreementregulating an obligation to consult.
[16] The underlying controversy to which the question relates is whether the dismissal of each Applicant was a case of genuine redundancy.
[17] Whether the Respondent has complied with any obligation in the Agreement to consult about the redundancy in each case will depend upon the identification of the precise obligation under the Agreement with which it was required to comply and determining as a matter of fact whether in each case it has complied. Both these matters are beyond the scope of the question the subject of the President’s direction.
[18] As we apprehend the case to be advanced by the Applicants, whether each dismissal was a case of genuine redundancy does not turn solely on whether the Respondent complied with any obligation in the Agreement to consult about the redundancy (Compliance Issue). The Applicants also say that the dismissals were not a case of genuine redundancy because it would have been reasonable in all the circumstances for each of the applicants to be redeployed in the Respondent’s enterprise (Redeployment Issue).
[19] We would observe that any application for judicial review of our decision answering the question and any consequential order made by the Court will not have the effect of resolving either the Compliance Issue or the Redeployment Issue, both of which must be determined to resolve the controversy whether each dismissal was a case of genuine redundancy.
[20] It is our provisional view that the most appropriate and expeditious course is for the applications to be returned to Commissioner Johns for hearing and determination. Initially this will require the Commissioner to determine the question whether, in the case of each application, the dismissal was a case of genuine redundancy.
[21] The parties will be invited to respond to our provisional view at the hearing listed for 9:30 am on Tuesday 3 March 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR717087>
Attachment 1
Attachment 2
1 [2020] FCAFC 19
2 Ibid at [10] per Logan J
3 [2017] FWCA 5411
4 Section 396(d) of the Fair Work Act 2009 (Cth)
5 CFMMEU MUA Division – Applicant’s submissions dated 25 May 2019; Teekay Shipping – Respondent’s submissions dated 3 June 2019; and CFMMEU MUA Division – Applicant’s reply submissions dated 7 June 2019
6 [2019] FWCFB 6047
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