Australian Municipal, Administrative, Clerical and Services Union and Fuji Xerox Australia Pty Limited and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of...

[2013] FWC 1056

[2013] FWC 1056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.589 - Application for procedural and interim decision

Australian Municipal, Administrative, Clerical and Services Union
and
Fuji Xerox Australia Pty Limited

and

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(C2012/5414)

COMMISSIONER CAMBRIDGE SYDNEY, 15 FEBRUARY 2013

Application under ss. 589, 602 and 603 for procedural, corrective decision - request to vary enterprise agreement approval Decision - question of contested eligibility of registered organisation - enterprise agreement approval Decision noted that the agreement covered both the registered organisations involved in the eligibility contest- application of sub-section 603 (3) (b) - prohibition on variation of enterprise agreement Decision - application dismissed.

[1] On 24 September 2012, the Australian Municipal, Administrative, Clerical and Services Union (ASU) made an application under ss. 589, 602 and 603 of the Fair Work Act 2009 (the Act), to have the terms of an enterprise agreement approval Decision “corrected, amended, varied or revoked by deleting reference to the CEPU being covered by the Fuji Xerox Australia - Customer Support Organisation Enterprise Agreement 2011.” This application for a procedural, corrective Decision and the earlier related proceedings which led to the Decision to approve the Fuji Xerox Australia - Customer Support Organisation Enterprise Agreement 2011, (the Agreement) and (the Agreement Decision), involve a very unfortunate procedural history.

[2] The Agreement Decision [PR521146] was made by Harrison C on 14 March 2012, and it noted that the ASU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were bargaining representatives for the Agreement and that the Agreement covered both organisations.

[3] However, during the Hearing of the application for approval of the Agreement a matter of contest had been identified as to whether the CEPU was entitled to represent persons who performed particular work to which the Agreement applied. Harrison C referred to this contest as “the eligibility question” and he concluded the Hearing with the following remarks:

“PN43

THE COMMISSIONER: Thank you. Look, I'm going to keep the eligibility question and the approval of the agreement separate. The approval of the agreement, if I am satisfied, pursuant to section 186 of the Act, that all of the requirements have been met, there is a mandatory requirement that the tribunal approve the agreement. It doesn't make any exceptions for interim orders or interim decisions. Accordingly, I am satisfied that the requirements of the Act in respect of sections 186, 187 and 188 have been met, and I propose that, pursuant to section 54, to approve a single enterprise agreement to be known as the Fuji Xerox Australia Customer Support Organisation Enterprise Agreement 2011. The agreement will have an operative date seven days hence which will be 21 March with a nominal expiry date of 31 December 2015. In respect of the approval I will publish a short decision in due course.

PN44

In respect of the eligibility question, I will confer with the president, if not in the interim, my panel head, in respect of how the matter might be programmed. I am aware of the history and the parties will hear in due course as to the next step in respect of that outstanding issue. Is there anything further? These proceedings will stand adjourned.”

[4] A short time after the adjournment of the Hearing on 14 March the Agreement Decision was issued and published.

[5] It is also relevant to note that the eligibility question was the subject of earlier proceedings before Harrison C in matter B2011/3049, an application for a bargaining order made by the ASU under s.229 of the Act. Directions were issued in that matter on 2 August 2011.

[6] On 5 July 2012, the ASU wrote to the Associate to Harrison C and referred to the Agreement Decision and the transcript of proceedings of 14 March 2012 and requested that “the matter be programmed.”

[7] On 8 August 2012, the Associate to Harrison SDP sent the following e-mail communication to the ASU:

“Dear Mr Cooney,

We refer to correspondence from the ASU dated 5 July 2012, and the request to have matter B2011/3049 programmed. Our file notes that this application has been withdrawn, in these circumstances Senior Deputy President Harrison does not intend to re-open it but invites you to lodge a fresh application.”

[8] On 10 August 2012, the ASU wrote to the Associate to Harrison SDP and relevantly stated:

“To clarify, the ASU correspondence of 5 July 2012 (attached) was in relation to matter AG2012/3477, the application for approval of the Fuji Xerox Australia - Customer Support Organisation Enterprise Agreement 2011. The ASU understands that matter B2011/3049 has been finalised.

At PN43 & 44 of the transcript in matter AG2012/3477 FWA indicated that the parties would be notified of the next step in the matter as to the question of eligibility, and how the matter may be programmed. The ASU is requesting that matter AG2012/3477 proceed as outlined above.”

[9] On 13 August 2012, the Associate to Harrison SDP sent the following e-mail communication to the ASU:

“Dear Mr Cooney,

I have brought your correspondence to Senior Deputy President Harrison’s attention. Her Honour does not intend to re-open matter AG2012/3477, the agreement has been approved and the file has been closed. We invite you to make an appropriate application if you wish to pursue this issue.”

[10] It has appeared that the ASU made the application in this matter as a consequence of the communication from the Associate to Harrison SDP of 13 August 2012. Proceedings in this matter commenced on 12 October 2012 at which time certain preliminary procedural issues were identified. The Parties agreed that these preliminary issues should be the subject of Hearing before any contemplation of the substantive application be undertaken. One particular preliminary issue of significance was the apparent prohibition upon any variation to a Decision approving an enterprise agreement created by sub-section 603 (3) (b) of the Act.

[11] This issue and other preliminary, procedural questions were programmed for Hearing which occurred on 29 November 2012. At the Hearing on 29 November, Mr E White, Counsel appeared for the ASU, Mr M Wright appeared for the CEPU and Ms C Fleming, solicitor, appeared for Fuji Xerox Australia Pty Limited (Fuji Xerox).

[12] At the Hearing evidence was adduced by Mr White who called Mr J Cooney as a witness for the ASU. Mr Cooney had made a statement which was admitted as evidence. Mr Wright, who appeared for the CEPU, had made a Statutory Declaration which was admitted into evidence without the need for any cross-examination of Mr Wright. Ms Fleming advised that Fuji Xerox did not wish to adduce any evidence or make any submissions at the Hearing. Both Mr White and Mr Wright made oral submissions in amplification of respective outlines of written submissions which had been filed earlier on behalf of the ASU and CEPU respectively.

The ASU’s Case

[13] In summary, Mr White submitted that the Agreement Decision was wrong because the CEPU could not be a bargaining representative in respect of the Agreement. Mr White acknowledged that the question of whether the CEPU was entitled to represent the industrial interests of employees whose work was governed by the Agreement was a matter for substantive argument at another time. However he said that the ASU had been denied an opportunity to have that question properly determined and this created a denial of procedural fairness.

[14] Mr White referred to various Authorities which he said established that any Determination made in circumstances where there was a denial of procedural fairness meant that the Determination was beyond jurisdiction. In this case the ASU had a legitimate expectation that it would have an opportunity to put a case before the Tribunal challenging the eligibility of the CEPU and that opportunity had been “foreclosed” contrary to the indications given to the ASU by the Tribunal.

[15] The submissions made by Mr White also sought to reject the proposition that sub-section 603 (3) (b) of the Act operated to prohibit the variation to the Agreement Decision as advanced by the ASU. Mr White submitted that because the Agreement Decision involved a denial of natural justice it was not a Decision in law and therefore not a Decision caught by s.603 of the Act.

[16] Mr White also submitted that the potential alternative process to seek redress by way of an Appeal was complicated by a delay associated with the time that the relevant officers at the ASU became aware of the Agreement Decision. Mr White said that there was no impediment to a single member revisiting the Agreement Decision when it was clear that there had been a denial of procedural fairness. Mr White submitted that it was more sensible to have a single member hear and determine the application rather than tie up the resources of the Tribunal with three members on an Appeal bench.

[17] In conclusion Mr White submitted that s. 603 of the Act empowered the Tribunal to vary the Agreement Decision in the terms proposed by the ASU and the exclusion contained in sub-section 603 (3) was properly construed as referring to a prohibition from varying or revoking valid Decisions of the types described therein. The Agreement Decision was not such a valid Decision and thus no prohibition would apply.

The CEPU’s Case

[18] Mr Wright who appeared for the CEPU, commenced his submissions by challenging the submission of the ASU regarding the alleged invalidity of the Agreement Decision. Mr Wright said that if part of the Agreement Decision was made beyond power then the entire Decision was invalid not just a part of it. Mr Wright submitted that all of the Parties sought to avoid an outcome which invalidated the Agreement Decision.

[19] Mr Wright further submitted that the substance of the application made by the ASU involved a request to make variation to the Agreement Decision. According to the submissions of Mr Wright, such request to vary the Agreement Decision had previously been made and denied when Harrison SDP had refused to re-open either the bargaining matter (B2011/3049) or the Agreement file. Consequently Mr Wright said that the Tribunal had already decided the matter and an issue of estoppel arose.

[20] Mr Wright also submitted that the ASU did not have standing to bring the application because it was not materially impacted by the Agreement Decision. Mr Wright said that the noting of the CEPU in the Agreement Decision did not affect the rights of the ASU, as it maintained its rights to represent the industrial interests of persons covered by the Agreement. Consequently very little flowed from that aspect of the Agreement Decision which noted that the CEPU was covered by it.

[21] The submissions made by Mr Wright then focused upon the prohibitive effect of sub-section 603 (3) (b) of the Act. Mr Wright stressed that s.603 of the Act did not restrict judicial oversight of Decisions but the ASU had not sought to appeal the Agreement Decision. Instead the ASU had attempted to have the Tribunal review a Decision to approve an enterprise agreement and such review was specifically not open to the Tribunal because of sub-section 603 (3) (b) of the Act.

[22] Mr Wright further submitted that the real dispute about whether the CEPU had coverage of certain business equipment technicians could not be resolved in these proceedings. Mr Wright said that that issue about the CEPU eligibility could only be resolved by either a declaration of the Federal Court or via application taken under the Fair Work (Registered Organisations) Act 2009.

[23] In conclusion, Mr Wright submitted that the ASU application should be rejected because it sought to re-open a matter which had previously been refused, and further it did not have proper standing because it was not affected by the original Decision. In addition, Mr Wright submitted that sub-section 603 (3) (b) of the Act operated to prohibit the Order sought by the ASU and the issue of the CEPU’s eligibility would need to be the subject of different proceedings.

Consideration

[24] The application before the Commission in this instance is unusual. The application seeks to invoke three sections of the Act, namely ss. 589, 602 and 603, as a means to vary a particular term contained in a Decision which approved of an enterprise agreement. The variation sought to the Agreement Decision was expressed as a proposed Order to be made in the following terms:

“That the decision in [2012] FWAA 2120 be corrected, amended, varied or revoked by deleting reference to the CEPU being covered by the Fuji Xerox Australia - Customer Support Organisation Enterprise Agreement 2011.”

[25] The issue which underlies this unusual application is a dispute about whether the CEPU has the right to enrol as members certain persons who work as business equipment technicians, in short, an eligibility question. This particular eligibility question arose in the context of bargaining for an enterprise agreement.

[26] It is unfortunate and undesirable to have questions of contested Union coverage complicate enterprise agreement bargaining. Quite properly, the ASU and the CEPU attempted to ensure that the bargaining proceeded without significant deleterious impact from the eligibility question. The eligibility question was separated from the process which provided for approval of the enterprise agreement and which culminated in the Agreement Decision of Harrison C.

[27] It is clear from the Agreement Decision and the transcript of proceedings before Harrison C on 14 March 2012, that the eligibility question had not been determined one way or the other by the approval determination. Further, Harrison C specifically referred to the eligibility question as “that outstanding issue”.

[28] However, it seems that the ASU have inferred that the eligibility question has remained alive and capable of further pursuit within the auspices of either the application for approval of an enterprise agreement or the earlier bargaining dispute. This assumption appears to have been made despite the matter being the subject of a Decision rather than an Interim Decision and also the mention by Harrison C at PN 43 that “It doesn’t make any exceptions for interim orders or interim decisions.” Consequently I think that the ASU may have misunderstood the intentional finality that I apprehend to have been attached to the Agreement Decision.

[29] In very simple terms, the Agreement Decision indicated that the application for approval upon which that Decision was established was not the appropriate vehicle for pursuit of the outstanding eligibility question. This position was subsequently reinforced by the refusal to re-open either the agreement or bargaining dispute files.

[30] Although the Commission and its predecessors have, on occasions, dealt with contested Union eligibility issues as part of enterprise agreement bargaining and agreement approval processes, there is an underlying caution attached to the adoption of such a procedure. For example, in DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain [PR515338] I expressed concern in the following terms:

“[23] Firstly, it is relevant to note the nature of these proceedings. This matter involves an application for approval of an enterprise agreement which has developed via the contested coverage issue, to require interpretation and application of the eligibility rule of a registered organisation, the TWU. The gravity of a determination in respect of the eligibility rights of any registered organisation can have much broader implications beyond the usual range of industrial issues that would ordinarily be relevant to the parties involved in an application for approval of a single-enterprise agreement.”

[31] The reluctance towards dealing with contested eligibility questions as part of enterprise agreement bargaining and approval processes is a natural reflection of the inappropriateness of any consequent determinations that may be made in proceedings which were not taken for the specific purpose of resolving questions of contested eligibility. Matters of contested eligibility are specifically catered for in the Fair Work (Registered Organisations) Act 2009 and Determinations regarding representational rights and entitlement to membership are subject to particular procedures involving notification to potentially effected organisations and involvement of peak councils.

[32] In returning to the particular sections of the Act under which this application has been taken each provision establishes some manifest difficulty for the applicant.

[33] Section 589 of the Act is entitled “Procedural and Interim Decisions” and is in the following terms:

“589 Procedural and interim decisions

(1) FWA may make decisions as to how, when and where a matter is to be dealt with.

(2) FWA may make an interim decision in relation to a matter before it.

(3) FWA may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit FWA’s power to make decisions.”

[34] It would seem that s.589 is confined to Decisions of a procedural nature and would not provide a power to vary a Decision in the terms sought by the proposed Order contained in the ASU application which deals with a substantive issue not a procedural question. This section would have provided Harrison C with the option of issuing the Agreement Decision as an Interim Decision and specifically reserving the eligibility question for further consideration. It was clear that Harrison C chose not to adopt such a course of action.

[35] Section 602 of the Act is entitled “Correcting obvious errors etc. in relation to FWA’s decisions” and is in the following terms:

“602 Correcting obvious errors etc. in relation to FWA’s decisions

(1) FWA may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWA (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If FWA makes a decision to make an instrument, FWA may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: FWA corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) FWA may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.”

[36] An examination of the transcript of proceedings before Harrison C on 14 March 2012, particularly paragraphs 43 and 44 as referred to above, does not give rise to any obvious error, defect or irregularity contained in the Agreement Decision. The Agreement Decision appears to accurately reflect exactly what Harrison C said when he made the extempore determination of the matter during the proceedings of 14 March 2012. The Agreement Decision does not contain words which suggest that Harrison C was contemplating further proceedings in the agreement approval matter as the means to deal with the outstanding eligibility question. Consequently the Agreement Decision does not contain any obvious error, defect or irregularity in order to permit the operation of s.602 of the Act.

[37] Section 603 of the Act is entitled “Varying and revoking FWA’s decisions” and is in the following terms:

“603 Varying and revoking FWA’s decisions

(1) FWA may vary or revoke a decision of FWA that is made under this Act (other than a decision referred to in subsection (3)).

Note: If FWA makes a decision to make an instrument, FWA may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) FWA may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) FWA must not vary or revoke any of the following decisions of FWA under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);

(c) a decision under Part 2-5 (which deals with workplace determinations);

(d) a decision under Part 2-6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: FWA can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).”

[38] It appears that s.603 of the Act provides the Commission with broad powers to vary or revoke Decisions made under the Act. However the prohibition contained in sub-section 603 (3) (b) would prima facie, apply to the Agreement Decision.

[39] The ASU argued that the prohibition contained in sub-section 603 (3) (b) was inapplicable to the Agreement Decision because that Decision was not a Decision “at law” because it was made without providing the ASU with procedural fairness. This proposition must be rejected for two primary reasons.

[40] Firstly, in the context of proceedings before a single member of the Commission, sub-section 603 (3) (b) does not provide a capacity to separate a part of a Decision and hold that just that part was a nullity because it was made ultra vires the Act or the law more generally. If, to avoid the prohibition inherent in sub-section 603 (3) (b), a Decision is not a Decision caught by the sub-section because it was infected by some ultra vires fault the Decision in totality must fail not just a part of it. The prospect that a part or parts of a Decision could have been made ultra vires the Act or law and that the remaining parts of the Decision would allow the Decision to stand would create manifest uncertainty and incongruity about the status of the Decision.

[41] Secondly, the assertion that the ASU was denied procedural fairness cannot be sustained. Harrison C and for that matter, Harrison SDP, have not denied the ASU an opportunity to be heard on the eligibility question. The Commission has simply determined that in this instance, the enterprise bargaining and agreement approval processes are not the appropriate means to provide for determination of the eligibility question.

Conclusion

[42] The determination of this application has primarily involved the operation of sub-section 603 (3) (b) of the Act. Sub-section 603 (3) (b) prohibits the Commission from varying or revoking inter alia, a Decision to approve an enterprise agreement.

[43] The application seeks an Order to vary particular terms contained in a Decision to approve an enterprise agreement. Although the applicant may have an expectation that a matter of contested Union eligibility which arose during the bargaining for the enterprise agreement, was to be determined as an adjunct to the process that provided the approval for the enterprise agreement, such determination cannot be achieved via the application made in this matter.

[44] Specifically, the application made in this instance is defeated by sub-section 603 (3) (b) of the Act.

[45] Consequently the application made by the ASU is dismissed and the proceedings are concluded accordingly.

COMMISSIONER

Appearances:

Mr E. White, Counsel, for the ASU.

Mr M. Wright, on behalf of the CEPU.

Ms C. Fleming, solicitor, on behalf of Fuji Xerox Australia Pty Ltd.

Hearing details:

2012.

Sydney:

November, 29.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR534114>