Bona Management Group Pty Ltd T/A Macxsec
[2013] FWCFB 5768
•15 AUGUST 2013
[2013] FWCFB 5768 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Bona Management Group Pty Ltd T/A Macxsec(C2013/4789)
VICE PRESIDENT HATCHER | MELBOURNE, 15 AUGUST 2013 |
Appeal against decision [[2013] FWC 3372] of Commissioner Lewin at Melbourne on 29 May 2013 in matter number AG2013/5860.
[1] In this decision we reproduce the reasons for decision which we stated on transcript at the conclusion of the hearing of this appeal on 14 August 2013.
[2] This appeal is against a decision of Commissioner Lewin dated 29 May 2013 1 in which the Commissioner dismissed an application by the Bona Management Group Pty Ltd for approval of an enterprise agreement entitled the Macxsec Enterprise Agreement 2013 (the Agreement). The basis for this decision was that the Commissioner found that the Agreement did not satisfy the “better off overall test” specified in s.193 of the Fair Work Act 2009 (the Act), even taking into account undertakings provided by the employer, and accordingly that the requirement for approval in s.186(2)(d) was not satisfied. That conclusion was supported by detailed mathematical modelling set out in the decision which demonstrated deficiencies in earnings on the basis of certain rostering scenarios under the Agreement when compared to the relevant award, the Security Services Industry Award 2010. The Commissioner noted in his decision that the applicant employer had not sought approval of the Agreement on the grounds contained in s.189 of the Act.
[3] The employer’s appeal against this decision relies on a number of grounds, but for the reasons which follow it is only necessary for us to consider one of those grounds. The appellant submitted that it had been denied procedural fairness by the Commissioner by reason of the following chain of events:
(a) On 16 April 2013, the Commissioner wrote to the representative of the employer raising a number of concerns about the Agreement. The Commissioner’s letter attached a report from the Enterprise Agreement Unit of the Commission which set out mathematical modelling demonstrating shortfalls in earnings when the Agreement was compared to the relevant award.
(b) On 23 April 2013, the employer’s representative responded to the Commissioner’s correspondence and the modelling analysis. The representative’s correspondence included a number of written undertakings which the employer was prepared to provide in order for the Agreement to be approved.
(c) On 2 May 2013, the Commissioner’s Associate by way of an email acknowledged receipt of the representative’s correspondence, and requested on behalf of the Commissioner further information about a particular matter.
(d) On 10 May 2013, the employer’s representative sent a letter in reply to the Commissioner’s Associate’s email which contained further information and restated the undertakings it had earlier provided.
(e) On 21 May 2013, the employer was sent a Notice of Listing from the Commissioner’s chambers concerning the application for approval of the Agreement. The notice of listing identified that the application was listed for “eHearing, in Chambers” on 11.00 am 22 May 2013, and contained the following statements:
“Parties are not required to attend the Fair Work Commission.
Any person wishing to be heard in this matter should contact the Chambers of Commissioner Lewin at least one hour prior to the abovementioned time and the matter will be listed for an attendance hearing.
In the absence of any person indicating they wish to be heard, the agreement will be approved.”
(f) In response to the Notice of Listing, the employer determined that it would not seek to be heard further in relation to its application on the basis of the indication given in the notice. No other party sought to be heard in relation to the application.
(g) On 29 May 2013, as earlier stated, the Commissioner issued his decision dismissing the employer’s application for approval of the Agreement.
[4] We accept that the content of the Notice of Listing, no doubt issued inadvertently, gave rise to a legitimate expectation on the part of the applicant employer that the Agreement would be approved on the basis of the information and undertakings it had earlier provided to the Commissioner, and that there was therefore no need for it to seek to be heard further in respect of its application. The employer was not put on notice that in fact the information and undertakings provided were considered insufficient to allow the Agreement to be approved. The employer was as a consequence denied procedural fairness.
[5] Not every denial of procedural fairness at first instance entitles an aggrieved appellant to a new hearing. An appellant in that situation has to demonstrate that it was denied the opportunity of a successful outcome. If a new hearing would only lead to the same result as the initial hearing, it will not be ordered. In Stead v State Government Insurance Commission 2 the High Court said at page 145 that the general principle of a right to a fair trial was subject to “an important qualification”:
“That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submission on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.”
[6] At the hearing of the appeal, the appellant did not attempt to demonstrate that the “better off overall test” analysis contained in the Commissioner’s decision was flawed such that the Agreement should have been approved. We ourselves cannot detect any flaw in the analysis.
[7] However, the appellant did submit that, firstly, it was denied the opportunity to provide further information and analysis to the Commissioner in response to the concerns patently held by the Commissioner concerning satisfaction of the “better off overall test”, and secondly that it was denied the opportunity to provide further undertakings which might have allowed the Agreement to be approved. We accept that the appellant was denied these opportunities, and therefore should be permitted a new hearing so that it may now be afforded these opportunities.
[8] We make the following orders:
1. Permission to appeal is granted.
2. The appeal is upheld.
3. The decision of Commissioner Lewin of 29 May 2013 the subject of the appeal is quashed.
4. The employer’s application for approval of the Macxsec Enterprise Agreement 2013 is under s.607(3)(c) of the Fair Work Act remitted to Commissioner Lewin for re-hearing subject to the following directions:
(i) the Commissioner shall give the employer and the employees’ bargaining representative an opportunity to demonstrate that the analysis for the purpose of the statutory test in s.193 that was contained in the Commissioner’s decision of 29 May 2013 was incorrect and/or incomplete;
(ii) the Commissioner shall give the employer the opportunity to provide further undertakings in accordance with the requirements of s.190 which would allow the Agreement to be approved.
VICE PRESIDENT
Appearances:
R. Graham for the appellant
Hearing details:
2013.
Melbourne;
14, August.
1 [2013] FWC 3372
2 (1986) 161 CLR 141
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