Australian Maritime Officers' Union, The v Poseidon Sea Pilots Pty Ltd
[2024] FWCFB 252
•7 MAY 2024
| [2024] FWCFB 252 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Australian Maritime Officers’ Union, The
v
Poseidon Sea Pilots Pty Ltd
(C2023/7882)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 7 MAY 2024 |
Appeal against decision [2023] FWCFA 3984 of Deputy President O’Neill on 27 November 2023 in matter number AG2023/3450 – permission to appeal refused.
The Australian Maritime Officers’ Union (the AMOU or Appellant) has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President O’Neill on 27 November 2023 (Decision)[1] to approve the Poseidon Sea Pilots Marine Enterprise Agreement (Agreement) under Part 2-4 of the Fair Work Act 2009 (FW Act). Poseidon Sea Pilots Pty Ltd (PSP) was the applicant at first instance and is respondent on the appeal.
Under s.604 a person who is aggrieved by a decision of the Commission may appeal the decision. However, there is no right to appeal, and an appeal may only proceed with the permission of the Commission. In this case we have decided to refuse permission to appeal. Our reasons follow.
Background
The Commission must approve an enterprise agreement under s.186 if the requirements set out in ss.186 and 187 are met. At first instance the AMOU opposed the approval of the Agreement on the basis that the Deputy President could not be satisfied that the Agreement met the requirement in s.186(2)(c) that the Commission be satisfied that the terms of the Agreement do not contravene s.55 of the FW Act. Section 55 deals with the interaction between the National Employment Standards (NES) and a modern award or enterprise agreement. It relevantly provides that an enterprise agreement must not exclude any provision of the NES.
At first instance the AMOU contended that the Commission could not be satisfied that s.55 was not contravened as the Agreement did not meet the standard for public holidays in s114, and the employees were shiftworkers and so entitled to an additional week’s paid annual leave under s.87 of the Act. The parties provided submissions going to these two issues and the matter was determined on the papers.
Section 87 provides the NES entitlement to paid annual leave. Relevantly, under s.87((3) an award free employee who is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week, is regularly rostered to work those shifts, and regularly works on Sundays and public holidays, qualifies for the shiftworker annual leave entitlement. The shiftworker annual leave entitlement is 5 weeks of paid annual leave. The parties accepted that the employees covered by the Agreement are award free. There was no contest that the employees’ rosters resulted in them working 26 Sundays and 5.5 public holidays per year.
At [14] of the Decision the Deputy President noted that she had raised with PSP whether the Agreement was required to include a definition of shiftworker. PSP contended that the work on Sundays and public holidays did not constitute being rostered regularly on Sunday and public holidays so the employees were not shiftworkers and no definition was necessary. The AMOU disagreed. The parties made reference to two decisions of the Commission. In O’Neill v Roy Hill Holdings Pty Ltd,[2] a decision of a single member in dispute resolution proceedings dealing with the circumstances of a single employee, it was held that the requirement “regularly works on Sundays and public holidays” was met where at least 34 Sundays and 6 public holidays are worked in a year. In the other case, Four yearly review of modern awards – Registered and Licensed Clubs Award,[3] the Full Bench rejected the proposition that the decision in Roy Hill Holdings was determinative. The Full Bench was considering the expression “regularly rostered to work on Sundays and public holidays” in the Registered and Licensed Clubs Award.
The Deputy President did not refer to the submissions on the issue but stated that she was satisfied that the employees were not shiftworkers and were not entitled to the shiftworker annual leave entitlement. Moreover, the Deputy President pointed out that the employees were entitled under the Agreement to five weeks’ annual leave per year in any event. So much was confirmed by the undertaking provided by PSP which removed any doubt that the annual leave entitlement was for five weeks. We consider in those circumstances the anterior finding that the employees were not shiftworkers was not necessary for the finding that s.55 was not contravened. We understand from a reading of [14] as a whole, the Deputy President to have also taken that view.
The public holiday issue was dealt with at [7] to [12] of the Decision. The Deputy President noted that the Agreement contains no express entitlement to be absent from work but provided that the obligations in regard to public holidays are set out in the NES and the Agreement. The Deputy President noted that Part G of the Agreement required employees to work in accordance with rosters based on 7 days on/7 days off. Clause 6 of the Agreement was reproduced, it provides that the Agreement be read and interpreted in conjunction with the NES and that the NES took precedence where any inconsistency arose. The Deputy President described the entitlement to be absent on public holidays, which is the NES public holiday standard provided by s.114 of the FW Act. The provision gives employees an entitlement to be absent on a public holiday. An employer is also able to request an employee to work on a public holiday, if the request is reasonable. The employee is able to refuse to work if the request is unreasonable, or it is reasonable to refuse to work.
The Deputy President then referred to the Full Court decision in CFMMEU v OS MCAP (OS MCAP),[4] which dealt with the application of s.114 to work performed on 7 day rosters. We note in that case the Court observed that an employer can require or desire employees to work on a public holiday where they satisfy the obligations in ss.114(2) and (3), namely, by making a request that is reasonable, or in circumstances where an employee’s refusal is not reasonable (taking into account the factors in s.114(4)).
In [12] of the Decision the Deputy President noted the similarities between the rosters worked under the Agreement and the matter dealt with by the Full Court. The Deputy President set out the requirements of the Agreement and stated that while the rosters under the Agreement provide for work on public holidays, which may be inconsistent with the right to refuse such work, clause 6 provides that the NES must be read to ensure that the right to refusal in s.114 prevails such that PSP can only require an employee to work on a public holiday if the obligations under s.114 of the Act are satisfied. The Deputy President concluded at [13] that for those reasons she was satisfied that the terms of the Agreement did not contravene s.55 of the Act.
Having found first that the terms of the Agreement did not contravene clause 55 in relation to either public holidays or annual leave, the Deputy President was satisfied that the requirements for approval in the Act were met and so approved the Agreement.
The AMOU appeals the decision and repeats its contentions at first instance that the Commission could not be satisfied that terms of the Agreement did not contravene s.55 of the Act.
Permission to appeal
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[5] There is no right to appeal. An appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.
The public interest test is a discretionary one involving a broad value judgment.[6] The public interest is not satisfied simply by the identification of error,[7] or a preference for a different result.[8] In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[9]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[10] An error in the decision at first instance is not necessarily a sufficient basis for the grant of permission to appeal.[11] Permission to appeal will generally not be granted where an appeal could serve no practical purpose.[12]
Consideration
The Deputy President decided to approve the Agreement. The AMOU contends that the Deputy President made two errors in her reasons for that decision. The first error is said to be a finding that the employees covered by the Agreement are not shiftworkers and the second is the failure to find that the employees were entitled to 5.5 days off in lieu of working public holidays. The AMOU does not ask that the Decision be quashed. It asks that the Full Bench correct the two findings.
The AMOU contends that it is in the public interest to grant permission to appeal on five grounds. First, the decision involved errors of law and fact. Secondly, the decision affects other employees in the maritime industry who work similar rosters and should be considered shiftworkers. Thirdly, if the error in relation to public holidays is not corrected then current and future employees will not enjoy their entitlement to be absent on public holidays. Fourthly, the decision is attended with sufficient doubt as to warrant reconsideration. Fifthly, that failing to correct the decision will erode public confidence in the Commission.
The first basis for granting leave to appeal is not made out. We do not see any error in the Decision. The Deputy President’s approach to the task set by s.186 was orthodox. She considered the requirements of s.186 and s.187 in light of submissions made by the parties, considered the matters raised by the parties in those submissions, and made appropriate findings that she was satisfied that the statutory requirements were met. Nothing in the AMOU’s notice of appeal or submissions leads us to the conclusion that the Deputy President made any error of fact or law.
It is evident from the AMOU’s second and third grounds in support of permission to appeal and its submissions in support that it is concerned that an industry practice of employees receiving 5.5 days leave in lieu of public holidays per year will be adversely impacted by the Decision. The AMOU pointed to a number of enterprise agreements covering similar employees that provide for days off in lieu of public holidays or provide paid annual leave in excess of the 5 weeks per year. The AMOU’s submissions state that the employees covered by the Agreement had previously been on employment contracts which afforded them 40.5 weeks leave per year comprised of 5 weeks annual leave, due to being shiftworkers, and 5.5 days leave in lieu of public holidays (the 5.5 days being days off in lieu of the public holidays worked on a 7 day on 7 days off roster).
We do not see how the Deputy President’s decision can have any impact on the stated industry practice. The agreements we were taken to do not provide a consistent approach to the treatment of public holidays. At best, based on those agreements, it might be said that there is a practice in the industry of affording leave on the basis that the shiftworker annual leave entitlement in the NES applies and public holiday entitlements that are more generous than the NES. It may be the case that the Agreement in this instance departs from the industry practice because leave in lieu of the 5.5 public holidays worked is not expressly provided for. If that is the case, that arises as an outcome of the bargaining rather than the Deputy President’s Decision to approve the Agreement.
In any event, as the Deputy President found the entitlement in s.114 of the Act to refuse to work on a public holiday is not affected by the Agreement. Clause 6 of the Agreement provides that where the NES provides a greater benefit the NES will prevail. That clause operates such that the entitlement to be absent from employment on a public holiday under s.114 is preserved. As the Full Court in OS MCAP observed, that entitlement is subject to a right to request by an employer and the right to refuse by an employee. There is no error in the Deputy President’s finding under s. 186(2)(c) that the Agreement does not contravene s. 55 of the Act.
The fourth basis for permission to appeal, that the decision is attended with sufficient doubt as to warrant reconsideration, fails for the same reason as the first ground. We consider there is no doubt that the Agreement met the requirements of ss.186 and 187 and the Decision does not warrant reconsideration. There may be some doubt about the finding that the employees were not shiftworkers but we do not consider there to be sufficient doubt to reconsider the matter. Especially in circumstances where that finding had no impact on the ultimate outcome. As the Deputy President noted, it was not necessary to make the finding once it was clear that the Agreement provided 5 weeks paid annual leave which is the shiftworker standard in s.87(1)(b). The fifth ground concerning the decision eroding public confidence in the Commission was not developed in the AMOU’s submissions and we reject it.
We refuse permission to appeal as the appeal demonstrates no arguable case of appealable error, there is no other public interest ground that justifies the granting of permission and there is no other discretionary factor that leads us to conclude that permission should be granted.
A final consideration in denying permission to appeal is the AMOU’s submission that it did not want the Decision quashed it simply wanted the reasons overturned. This suggests that the appeal is an appeal against reasons and not an appeal against the decision to approve the Agreement. It is not in the public interest nor otherwise appropriate to grant permission to appeal in those circumstances.
DEPUTY PRESIDENT
Appearances:
T Ellis for the appellant.
PJA Willoughby of counsel, for the respondent.
Hearing details:
2024.
By video link using Microsoft Teams:
15 February.
Final written submissions:
15 & 16 February 2024.
[1] [2023] FWCA 3984.
[2] [2015] FWC 2461.
[3] [2020] FWCFB 4762.
[4] [2023] FCAFC 51.
[5] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[6] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[8] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[9] (2010) 197 IR 266 at [27].
[10] Wan v AIRC (2001) 116 FCR 481 at [30].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]; United Firefighters' Union of Australia, Union of Employees, Queensland Fire Brigade Employees' Union of New South Wales v United Firefighters' Union of Australia[2023] FWCFB 261 at [18].
[12] See e.g. Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia[2013] FWCFB 4250 at [14]; Ferrymen Pty Ltd [2013] FWCFB 8025, 238 IR 258 at [48]; at [28]; New South Wales Bar Association v McAuliffe[2014] FWCFB 1663, 241 IR 177 at [28]; Appeal by KCL Industries Pty Ltd [2016] FWCFB 3048, 257 IR 266 at [8]. Maritime Union of Australia v Harbour City Ferries [2014] FWCFB 3858 at [28]; Linfox Australia Pty Ltd v Australian Federated Union of Locomotive Employees[2019] FWCFB 5861 at [10].
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