Benjamin Fries v Telum Contract Labour Pty Limited
[2014] FWCFB 90
•20 JANUARY 2014
[2014] FWCFB 90 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Telum Contract Labour Pty Limited
(C2013/6641)
VICE PRESIDENT WATSON | SYDNEY, 20 JANUARY 2014 |
Appeal against decision [2011] FWAA 4270 of Senior Deputy President O’Callaghan at Adelaide on 5 July 2011 in matter number AG2011/1016 - approval of greenfields agreement - employee subsequently employed under agreement seeking an extension of time to lodge an appeal against the approval - tests for approving greenfields agreements - differences in wages and conditions between agreements - relevance of differences to the tests for approval - Fair Work Act 2009, s 604.
[1] This decision relates to a Notice of Appeal lodged by Benjamin Fries against a decision of Senior Deputy President O’Callaghan to approve a greenfields agreement known as the Telum South Road Superway Precast Factory Agreement 2011-2013 (the Agreement) on 5 July 2011. Mr Fries was subsequently employed under the Agreement from 27 February 2012. His employment was terminated on 3 August 2013. The nominal expiry date of the Agreement is 31 December 2013.
[2] Pursuant to Rule 12.3(b) of the Fair Work Commission’s rules, an appeal against a decision must be lodged within 21 days of the decision appealed against or such further time as may be allowed by the Commission. The notice of appeal is therefore over two and a quarter years out of time. This decision deals with the application made by Mr Fries that the time for lodging his appeal be extended to allow his application for permission to appeal and the appeal to be considered.
[3] The principles to be applied when considering an extension of time for lodging an appeal were considered by a Full Bench in Tokoda v Westpac Banking Corporation[2012] FWAFB 3995 (the Tokoda case). The Full Bench said:
- whether there is a satisfactory reason for the delay;
- the length of the delay;
- the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
- any prejudice to the respondent if time were extended.
“[3] Time limits of the kind in Rule 12 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 12.3(b):
[4] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.”
[4] Mr Fries submits that the following factors are relevant to his application for an extension of time –”Public Interest weight, Nil Union Representation, Threat of job loss and out worker, closed door manner in which decision was made.” He developed each of these matters in oral submissions to the Full Bench.
[5] Mr B Cross, of counsel, who appeared for Telum Contract Labour Pty Ltd (Telum), submitted that no persuasive reason was submitted for the delay, the length of the delay is extraordinary and unacceptable, the grounds of appeal do not give rise to any likelihood that any ground will be upheld and granting an extension of time will prejudice the employees and the employer who have operated under the Agreement since its approval.
[6] We propose to adopt the approach to the application for an extension of time in the Tokoda case and consider the factors relied upon by Mr Fires.
[7] The concerns of Mr Fries appear to relate to the appropriateness of the Agreement to the work he performed while employed by Telum, and the termination of his employment. He is firmly of the view that the work he performed is not in the nature of precast factory work and is more in the nature of construction work. He believes he should have been remunerated in line with construction wages and conditions and not under the Agreement. He is also firmly of the view that raising his concerns led to the termination of his employment.
[8] While these concerns may in one sense be understandable, and we have no doubt that he is genuine in his concerns, in our view the grounds of appeal relied upon by Mr Fries are fundamentally misconceived. The discretion involved in approving a greenfields agreement under the Act is limited. The Commission must apply certain statutory tests, and must approve the agreement if it finds that the tests are met.
[9] In undertaking this role, the Commission is not required to apply a value judgment as to the terms and conditions of employment, provided the agreement passes the “Better Off Overall Test”. Nor does the task of the Commission involve a determination of which employees might be covered by the agreement, except in a general way. Whether the agreement most appropriately applies to a particular employee engaged to perform certain work is not an issue in the approval process. If the agreement applies to certain work, it will create rights and obligations for the employees concerned. If it does not apply, the rights and obligations of employees and the employer will arise from other sources, most probably in the relevant modern award.
[10] When an agreement is found to pass the better off overall test and is genuinely made with a union that is entitled under its eligibility rules to represent a majority of employees who will be covered by the agreement, it has not been considered against the public interest that the wages and conditions are lower than those of other employees covered by a different agreement. Indeed the very nature of the enterprise bargaining system is that there may be differences in wages and conditions from enterprise to enterprise. A possible claim for different rates of pay by future employees is irrelevant to the approval process and irrelevant to any appeal against the approval of the agreement.
[11] Further, any subsequent detriment to an employee’s employment under an agreement is not relevant to any appeal, and if any remedy arises from such detriment, it must be pursued in another manner. The other matters raised by Mr Fries are not matters of substance in any appeal against the decision to approve the Agreement. Even if the appeal is successful, the change in status of the Agreement, being no longer approved by the Commission, will not lead to any change in Mr Fries’ circumstances or provide any redress for his grievances.
[12] If an extension of time for lodging an appeal is given, the lack of relevance of Mr Fries’ grievances to the decision under appeal is highly likely to lead to the denial of permission to appeal.
[13] We are also of the view that no satisfactory reason for the lengthy delay in seeking to appeal the decision has been advanced and granting an extension of time will put other parties to unnecessary cost and inconvenience.
[14] For these reasons we decline to grant an extension of time for the filing of an appeal in this matter.
VICE PRESIDENT WATSON
Appearances:
Mr B Fries appeared on his own behalf.
Mr B Cross of Counsel and Ms L Berton on behalf of Telum Contract Labour Pty Limited.
Hearing details:
2013.
Sydney (And Video Link to Adelaide).
December, 12.
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