Broadspectrum (Australia) Pty Ltd v United Voice - [2019] HCATrans 57

[2019] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P49 of 2018

B e t w e e n -
BROADSPECTRUM (AUSTRALIA) PTY LTD
Applicant
and
UNITED VOICE
First Respondent
FAIR WORK COMMISSION
Second Respondent
TRANSPORT WORKERS’ UNION OF AUSTRALIA
Third Respondent
Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 MARCH 2019, AT 10.38 AM

MR S.J. WOOD, QC: If it pleases the Court, I appear with my learned friend, MR D. TERNOVSKI, for the applicant. (instructed by KHQ Lawyers)

MR M. GIBIAN, SC: May it please, I appear with MR A.P. GUY for the first and third respondents. (instructed by Solicitor, United Voice)

KEANE J: Mr Wood.

MR WOOD: Thank you, your Honours. Your Honours, the error in the court’s decision below was that it found that the Commission had applied the right test, the broader test, for coverage, a test that was first propounded, or propounded by this Court in ALDI even though the Commission was attempting to apply the narrower old Federal Court test for coverage; that is the error, it is found at paragraphs 39 and 40 of the reasons for decision.

KEANE J: Of the?

MR WOOD: Of the Full Court.

GORDON J: This is on application book ‑ ‑ ‑

MR WOOD: Application book 44 to 45, your Honours.

GORDON J: Is it right that those paragraphs are in effect not critical or essential to the reasoning of the Full Court?

MR WOOD: No.

GORDON J: They seem to be ‑ ‑ ‑

KEANE J: They look like an afterthought.

MR WOOD: No, your Honour, that is not right. No, your Honours.

GORDON J: It says “Furthermore and in any event”.

MR WOOD: The basis upon which the case was run below was on two bases: one, that there was an irrelevant consideration taken into account by the Commission and, in any event, two, that the Commission applied the wrong test, which it clearly did because this Court had not yet propounded the broader coverage test in ALDI. At the time the Commission came to make its decision the only test that it could apply, acting in an orthodox manner, was the narrower Federal Court test also propounded by the Federal Court in the ALDI Case. That argument was before the court. It was encompassed by the grounds before the court. It was in the written submissions.

GORDON J: Was it? I thought the point taken against you was it was not raised until oral submissions in reply ‑ ‑ ‑

MR WOOD: No, that is right, your Honours.

GORDON J: ‑ ‑ ‑ and as a result the court did not have the benefit of submissions on the issue.

MR WOOD: No, that is not correct. What happened was that the point was raised in the written submissions, admittedly at that point in the written…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] HCATrans 57
Decision Date

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd sought special leave to appeal from a decision of the Full Court of the Federal Court of Australia. The dispute concerned the correct test for determining whether employees were "covered by" an industrial agreement, specifically in the context of an application to set aside an agreement under the Fair Work Act 2009 (Cth). Broadspectrum argued that the Commission, and subsequently the Full Court, had erred in its application of the coverage test, particularly in light of the High Court's decision in *ALDI Foods Pty Ltd v United Voice* (2017) 351 ALR 1.

The primary legal issue before the High Court was whether the Full Court of the Federal Court had correctly determined that the Commission's application of the "principal purpose test" was consistent with the broader coverage test articulated by the High Court in *ALDI*. Broadspectrum contended that the Commission had applied the narrower, pre-*ALDI* Federal Court test for coverage, and that the Full Court's finding that this was consistent with the *ALDI* decision was erroneous. This raised the question of whether the Full Court had misunderstood or misapplied the High Court's pronouncement on the correct approach to determining coverage.

Broadspectrum's argument was that the Commission, at the time of its decision, was bound to apply the narrower Federal Court test for coverage. It was submitted that the Full Court erred by finding that the Commission's reasoning, which involved reference to the "principal purpose test" and considerations of future work, was not inconsistent with the broader test established in *ALDI*. Broadspectrum argued that the *ALDI* decision introduced an essential examination of the future, which was distinct from and broader than the principal purpose test, and that the Full Court's conclusion that the two were consistent effectively undermined the *ALDI* pronouncement. The High Court considered whether the issue was sufficiently clear and important to warrant granting special leave to appeal, noting the complexity of parsing the lower courts' reasoning.

Orders