“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Inghams Enterprises Pty Ltd

[2011] FWA 2730

[2011] FWA 2730

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236—Majority support determination

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Inghams Enterprises Pty Ltd
(B2010/3486)

Fair Work Act 2009
s.229 - Application for a bargaining order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Inghams Enterprises Pty Ltd
(B2010/3487)

COMMISSIONER RYAN MELBOURNE, 9 MAY 2011

Ingham Enterprises Pty Ltd.

[1] An application for a Majority Support Determination (MSD) and an application for a Bargaining Order (BO) were made by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) on 6 October 2010.

[2] The AMWU had, on 30 June 2010, applied to FWA for a Protected Action Ballot Order against Ingham Enterprises Pty Ltd (Inghams). That application was heard by me and a decision issued on 13 October 2010 1 (the PABO matter).

[3] Inghams advised FWA and the AMWU on 13 October 2010 that it intended to appeal the decision in the PABO matter. A hearing of each of the MSD and BO applications was listed for 14 October 2010. This hearing was vacated by consent of the parties until the appeal in the PABO matter was resolved.

[4] On 5 January 2011 a Full Bench of FWA upheld the appeal against the decision in the PABO matter and the Full Bench quashed the decision 2.

[5] By email on 10 February 2011 the AMWU requested FWA to relist the two outstanding matters and to determine both applications. In making that request the AMWU made the following submission: “AMWU contends that your ruling in the ballot application that the Workers are employees of Ingham stands, and that it is subject to issue estoppel.”

[6] By email advice on 11 February 2011 Inghams legal representatives submitted that “In the circumstances we suggest that it would be inappropriate to deal with the AMWU’s substantive applications - for a majority support determination and for a bargaining order - without first considering the threshold issue of the workers’ status.”

[7] Directions were then issued by FWA requiring the AMWU and Inghams to file written submissions on the question of issue estoppels by, respectively, 1 March 2011 and 15 March 2011.

[8] I have considered the submissions of both parties and I conclude that issue estoppel does not apply to the question as to whether the workers who are subject to each of the MSD and BO applications are employees of Inghams.

[9] The relevant principles relating to issue estoppel may be summarised as follows:

“(a) A judicial determination directly involving an issue of fact or of law disposes once and for all of that issue so that it cannot afterwards be raised between the same parties or their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531–532;

(b) However, issue estoppel covers only those matters which the prior decision necessarily established as the legal foundation or justification for that decision: in other words, the matter in issue must have been “necessarily decided” by the prior decision: Blair v Curran.

(c) Further, what is closed or precluded is only that which is “legally indispensable to the conclusion”of the prior decision maker. Thus, where a number of ingredients or ultimate facts are essential to a claim, such that the absence of any one would cause the claim to fail, the estoppel covers only the actual ground upon which the existence of the right was negatived. However, any matter which was necessary to decide and which was actually decided as the basis of the decision would be included. Such matters have been referred to as the “matters cardinal” to the point in issue: Blair v Curran.”  3

[10] I accept that issue estoppel is available in proceedings before Fair Work Australia. 4

[11] The critical issue which arises for decision in this matter is:

• Is there a decision or determination in existence and which supports issue estoppel?

[12] The decision upon which the AMWU contends gives rise to issue estoppel is the decision I made on 13 October 2010. On appeal a Full bench of FWA quashed that decision.

[13] The contention of the AMWU is that the Full Bench, whilst quashing the decision, at first instance did not overturn a key finding made at first instance.

“35..........it is submitted that the Full Bench's approach here - something not crystal clear - was to leave Commissioner Ryan's finding on the Status issue intact and that this means that the prevailing pronouncement of FWA on this issue is the Ballot decision.

36. It is observed in passing that is not unusual, in both appeals and matters decided at first instance, that a case stands on several pillars and that the removal of a particular pillar will cause the whole case to fail. Sometimes, in the disposition of a matter a tribunal will confine its, attention to this single crucial pillar, and for good reason, for where the pillar in question is immediately seen as unsound, knocking it over first would be the most economical way of dealing with a matter. That appears to be what the Full Bench did in the appeal, perhaps for economy of effort, perhaps for some other reason, but whatever the reason, the end result is that the Status issue was not deliberated over so it would be completely unreasonable to have it regarded as overturned.”  5

[14] I do not accept that the end result of the appeal process, in which the Full Bench quashed the decision at first instance, was to have left intact that part of the decision at first instance which decided that a certain group of workers were in fact employees of Inghams.

[15] An appeal is conducted in accordance with s.607 which provides as follows:

“607 Process for appealing or reviewing decisions

(1) An appeal from, or a review of, a decision of FWA or the General Manager may be heard or conducted without holding a hearingonly if:

(a) it appears to FWA that the appeal or review can be adequately determined without persons making oral submissions for consideration in the appeal or review; and

(b) the persons who would otherwise, or who will, make submissions (whether oral or written) for consideration in the appeal or review consent to the appeal or review being heard or conducted without a hearing.

(2) FWA may:

(a) admit further evidence; and

(b) take into account any other information or evidence.

(3) FWA may do any of the following in relation to the appeal or review:

(a) confirm, quash or vary the decision;

(b) make a further decision in relation to the matter that is the subject of the appeal or review;

(c) refer the matter that is the subject of the appeal or review to an FWA Member (other than a Minimum Wage Panel Member) and:

(i) require the FWA Member to deal with the subject matter of the decision; or

(ii) require the FWA Member to act in accordance with the directions of FWA.”

[16] The very structure of s.607 permitted the Full Bench of FWA to do what the AMWU suggests; namely preserve intact a specific finding of a member at first instance whilst overturning other findings of the member at first instance. However s.607 also permitted the Full Bench to simply quash the decision at first instance.

[17] In the present matter where the Full Bench quashed the decision at first instance there is no justification for trying to read down the effect of the Full Bench decision so that it would have the effect of quashing part of the decision at first instance and keeping intact part of the decision at first instance. If the Full Bench had intended that result then the Full Bench clearly had the power under s.607 to do exactly that. Since they didn’t do it then it must be accepted that on the plain words of the Full Bench decision the whole of the decision at first instance has been quashed.

[18] The very language of s.607 supports an interpretation of the word “quash” as having its ordinary meaning: “to put down or suppress completely; to make void, annul or set aside” (Macquarie Concise Dictionary) This is so because to quash a decision on appeal is one of the three specific actions identified in s.607(3)(a). The other two being to confirm the decision or to vary the decision. In the context of s.607(3)(a) it is clear that the three possible actions are intended to cover the field:

1. a decision can be confirmed and thus it would continue to operate.

2. a decision can be quashed in which case the whole of the decision is suppressed completely or voided.

3. a decision can be varied so that the original decision remains but is now in a form which is different to its original form.

[19] To describe a decision as being quashed in part only is akin to describing a female as being a little bit pregnant. The reality is that the state (being quashed or being pregnant) exists or doesn’t exist - it is all or nothing - and anything else in between is impossible.

[20] In the PABO the decision was quashed and thus there is nothing on which issue estoppel can operate.

[21] I note that in further proceedings on both applications, I can have regard to the proceedings between the AMWU and Inghams in the PABO matter - but that is as far as it goes. The PABO matter can have no control over the outcome of the two current proceedings. I also note that in the regard to the application for a Majority Support Determination that the question to be answered by the Tribunal is not the same as the question answered in the PABO matter. In the PABO matter the determination of who was an employee related to a particular group of workers at a particular point in time.

[22] Section.237(2)(a)(i) makes it very clear that even if the same question is raised, the point of time at which the question will be considered can be very different in the MSD matter from what is was in the PABO matter. Whilst not as explicit in the case of a BO it is clear from the structure of the provisions concerning a BO that whilst the same question will arise as did in the PABO matter again the time at which the question must be answered may be very different. Determining which workers are employees of Inghams may lead to different answers at different points of time simply due to the possibility that the number, identity and role of workers may change from time to time.

[23] I will list both applications for mention and programming.

COMMISSIONER

 1   [2011] FWA 7925

 2   [2011] FWAFB 33

 3   Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 at para79

 4   Kuligowski v Metrobus [2004] HCA 34 at para 22 and 32

 5   AMWU written submissions filed 28 February 2011

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