CC Pty Ltd T/A Cook Colliery v Construction, Forestry, Mining and Energy Union

[2017] FWC 1919

[2017] FWC 1919

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.606 – Staying decisions that are appealed or reviewed

CC Pty Ltd T/A Cook Colliery
v
Construction, Forestry, Mining and Energy Union
(C2017/1586)

VICE PRESIDENT CATANZARITI SYDNEY, 7 APRIL 2017

Appeal against decision [2017] FWC 1447 of Commissioner Spencer at Brisbane on 13 March 2017 in matter number C2016/1848.

[1] On 13 March 2017, Commissioner Spencer issued a Decision 1 regarding whether clause 32 of the CC Pty Ltd Enterprise Agreement 2012 (“the Agreement”) limits the jurisdiction of the Commission to arbitrate a dispute. In determining the above, the Commissioner concluded that the parties expressly empowered the Commission to exercise any method of dispute resolution permitted by the Agreement.

[2] On 24 March 2017, the Appellant lodged a Notice of Appeal appealing the Decision of Commissioner Spencer. In the Notice of Appeal, the Appellant applied for a stay of the Decision. On 4 April 2017, I heard the stay application.

[3] At the hearing, Mr I. Humphreys, solicitor, and Mr A. Wydmanski, solicitor, sought permission to appear for the Appellant and Mr R. Reed, of Counsel, and Mr W. Ash, solicitor, sought permission to appear for the Respondent. Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to both parties to be represented.

[4] At the conclusion of the hearing, I made an ex tempore decision informing the parties that I would grant a stay of Commissioner Spencer’s Decision. My reasons for reaching this conclusion are outlined below.

Applicable Principles and General Approach

[5] There was no dispute between the parties as to the principles applicable to the determination of the stay application. They are as stated in Kellow-Falkiner Motors Pty Ltd v Edghill, 2 in which the Full Bench approved the following statement of principle:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

Arguable Reason

Appellant’s Submissions

[6] The Appellant outlined a number of grounds of appeal in its written submissions concerning the exercise of the Commission’s powers under sections 595 and section 739 of the Act. Many of those appeal grounds and submissions relied upon by the Appellant relate to the Deputy President’s findings, which led to the conclusion that the Commission had jurisdiction to arbitrate the dispute. I have considered those submissions and I will not recite them for the purposes of this Decision.

Respondent’s Submissions

[7] The Respondent contended that the Appellant did not have an arguable case. In particular, the Respondent submitted that section 186(6) of the Act required the Agreement to include a term that “requires or allows the FWC, or another person who is independent of the employers, employees and employee organisations covered by the agreement, to settle disputes.” In this regard, the Respondent contended that the Agreement could not be approved by the Commission, unless it complied with section 186(6) of the Act and, therefore, clause 32 of the Agreement must be taken to conform to section 186(6) as a minimum.

[8] The Respondent asserted that, properly construed, clause 32 of the Agreement provides that, in the absence of agreement between the parties as to the method if dispute resolution, the Commission may exercise any available dispute resolution power that it considers appropriate to ensure the settlement of the dispute. As such, the Respondent posited that clause 32 represents an agreement between the parties that the Commission may arbitrate the dispute pursuant to section 739(4) of the Act and, therefore, the Appellant has no arguable case.

Consideration

[9] In considering the grounds of appeal outlined by the Appellant, I am satisfied those grounds raises important questions concerning the application and construction of sections 595 and 739 of the Act. As such, I am satisfied that the Appellant has an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal.

Balance of Convenience

Appellant’s Submissions

[10] The Appellant contended that if its appeal is successful and the jurisdictional objection is upheld, the practical effect of that finding is that the Commission does not have jurisdiction to arbitrate either the first dispute (application lodged by the Respondent on 8 August 2016) or the second dispute (application lodged by the Respondent and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (“CEPU”) on 17 March 2017). Therefore, the Appellant asserted that it is not in the interests of the parties to bear the time and expense for preparing and participating in an arbitration hearing in circumstances where it may ultimately be found that such arbitration is beyond the jurisdiction of the Commission.

[11] Further, the Appellant contended there was no demonstrable prejudice to the Respondent by the granting of a stay.

Respondent’s Submissions

[12] The Respondent contended that a stay of the original Decision would delay the resolution of a dispute over appropriate pay rates for the new roster structure proposed by the Appellant where the Appellant’s relevant employees have concerns over the current proposal causing them financial disadvantage. Therefore, the Respondent asserted that it is important that those financial issues be resolved at the earliest opportunity in order to deal with any financial disadvantages to employees and to alleviate concerns in that regard which have the capacity to cause industrial unrest impacting upon production.

Consideration

[13] At the hearing, the Appellant drew my attention to a further matter involving the parties, which is to be listed before Deputy President Asbury. In that matter, I note the jurisdictional issue would again be enlivened. The Respondent submitted that the matter before Deputy President Asbury was complex and it would need to put on detailed evidence. The Appellant noted that if the stay was granted, it would not take any steps to delay preparation for the matter before Deputy President Asbury. I found this concession to be critical when considering the balance of convenience, given that the appeal hearing before a Full Bench of the Commission is on 18 May 2017, which would, in all likelihood, occur before the conclusion of the matter before Deputy President Asbury.

[14] Accordingly, I am satisfied that the balance of convenience favours the granting of a stay.

Conclusion

[15] I am satisfied there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. Further, I am satisfied that the balance of convenience heavily weighs in favour of granting the stay application.

[16] Accordingly, the stay application is granted.

[17] An Order will be issued to this effect in accordance with this Decision.

VICE PRESIDENT

Appearances:

I. Humphreys, solicitor,and A. Wydmanski, solicitor,for the Appellant.

R. Reed, of Counsel, and W. Ash, solicitor,for the Respondent.

Hearing details:

2017.

Sydney via video link to Brisbane:

4 April

 1   [2017] FWC 1447.

 2 [2000] AIRC 1207.

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