Christopher Budd v Commissioner of the Australian Federal Police
[2025] FWCFB 35
•14 FEBRUARY 2025
| [2025] FWCFB 35 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Christopher Budd
v
Commissioner of the Australian Federal Police
(C2024/9150)
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 14 FEBRUARY 2025 |
Permission to Appeal - Appeal against decision [[2024] FWCA 4231] of Deputy President Dean at Canberra on 2 December 2024 in matter number AG2024/4565
Mr Christopher Budd has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] of Deputy President Dean to approve an enterprise agreement known as the Australian Federal Police Enterprise Agreement 2024-2027 (the Agreement).
The matter was listed for hearing on 5 February 2025 regarding permission to appeal only. The respondent sought permission to be legally represented in the matter. The appellant did not oppose permission being granted in relation to the substantive appeal, but did oppose permission being granted in respect of the permission to appeal hearing. We granted permission to the respondent in the matter, being the appeal filed by Mr Budd, which includes the question of whether permission to appeal should be granted. We are satisfied that granting permission would enable the appeal (including the question of permission to appeal) to be dealt with more efficiently, taking into account the complexity of the matter. We reached this conclusion based on an assessment of the written material filed by both parties, and, contrary to the appellant’s submission, there is no requirement for evidence to be led before permission can be determined.
Mr Budd sought to adduce new evidence, having filed a witness statement of Ms Sarah Doery.[2] Whilst the Full Bench has a discretion to admit further evidence in an appeal, it is exceptional.[3] Having regard to the content of Ms Doery’s witness statement, we declined to do so in this case. We are not satisfied that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance or that it is of such a high degree of probative value that there is a probability that there would have been a different result at first instance, noting that Mr Budd’s detailed submissions included that permission to appeal should be granted to avoid substantial injustice and covered much of the same ground.
For the reasons that follow, permission to appeal is refused.
Background facts
The Agreement covers approximately 7,642 employees. It replaces two agreements that currently apply to these employees. One of these is the Australian Federal Police Enterprise Agreement 2017-2020.[4] Mr Budd was an employee bargaining representative for that agreement. He filed a Form F18A opposing its approval. Following a hearing, the Agreement was nonetheless approved, and Mr Budd then unsuccessfully sought to appeal the approval decision.[5]
In bargaining for the Agreement, Mr Budd was again an employee bargaining representative and actively participated in the bargaining. In June 2024, he applied to the Commission for bargaining orders, and there is some crossover between the issues raised by Mr Budd in that application and the grounds of appeal he now relies on. The Agreement was ultimately made on 15 November 2024 and the application for approval lodged on 19 November 2024. The Community and Public Sector (CPSU) and the Australian Federal Police Association (AFPA) both filed Form F18s supporting approval of the Agreement. Mr Budd did not file a Form F18A (or otherwise communicate that he intended to object to the approval application). Nor did any other person. Deputy President Dean approved the Agreement 13 days after the application was lodged, on 2 December 2024.
Decision under appeal
The decision, as is common where no objections have been made concerning the application for approval of a single enterprise agreement, is brief. The Deputy President records that she is satisfied that each of the requirements of s 186, 187 and 188 as are relevant to the application for approval have been met. The Deputy President notes that the Agreement covers the CPSU and the AFPA, both organisations having given notice under s 183 of the Act.
Grounds of appeal
Nine grounds of appeal are advanced by Mr Budd:
1. Shiftworkers are not described as shiftworkers contrary to ss 187(4) and 196(2) of the Act;
2. There is no genuine agreement because of the respondent’s misleading statements regarding UoF [use of force] allowance when doing Band 9 HDA [higher duties allowance];
3. Due to the Band 9 HDA UoF allowance issue, it is not open to the Commission to be satisfied the respondent complied with s 180(5);
4. There is no genuine agreement because the APSC Policy et al[6] are not legally binding, contrary to what the respondent continually communicated to its employees;
5. The first instance decision failed to consider whether the APSC Policy et al was legally binding;
6. The Agreement contains an unlawful term, namely, a term that discriminates on the basis of pregnancy;
7. The first instance decision failed to consider whether the Agreement discriminated on the basis of pregnancy;
8. The Agreement requires or permits or purports to require or permit contraventions of general protections, namely, s 340: taking adverse action against pregnant employees for exercising their workplace right to take maternity leave and/or paid parental leave; and
9. It is open to the Commission to refuse to approve the Agreement because it requires or permits or purports to require or permit contraventions of a civil remedy provision (that is, s 340).[7]
Mr Budd contends that it is in the public interest to grant permission to appeal:
(a) To conform to precedent and comity;
(b) To ensure the NES [is] not displaced;
(c) To provide protection to employees from workplace discrimination;
(d) To ensure enterprise agreements are genuinely agreed to; and
(e) To prevent substantial injustice.[8]
Permission to appeal – principles
An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. There is no right to appeal, and an appeal may only be made with the permission of the Commission.
Section 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9] The public interest is not satisfied simply by the identification of error or a preference for a different result.[10] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[11] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[12] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration
We do not consider it in the public interest to grant permission to appeal.
Turning to the grounds of appeal advanced by Mr Budd, Ground 1 can be readily disposed of. The underpinning modern award is the Australian Federal Police Enterprise Award 2016. That award defines certain employees as shiftworkers. However, critically and unlike some modern awards, it does not define such employees as shiftworkers for the purposes of the National Employment Standards.
Grounds 2 and 3 concerning the UoF allowance also have no merit. Clause 48 of the Agreement provides that a UoF allowance will be payable to employees with current UoF certification. Mr Budd contends that after the Agreement was made, he “became aware that the AFP might be intending to interpret the then-made EA to exclude use of force (UoF) qualified members doing HDA as a Band 9 from being paid the UoF allowance” through “discussions I overhead in the office.”[13]
At the hearing, Mr Budd submitted that it would be easy to obtain evidence that the respondent changed its position, although he had chosen not to seek orders requiring production of such evidence until and unless permission to appeal had been granted.[14] On the basis of his unsupported premise that the respondent had, after the Agreement was made, changed its position as to how it intended to implement clause 48, Mr Budd contends that the respondent’s representations during bargaining that all employees with a current UoF qualification would be paid the allowance (which is consistent with what clause 48 of the Agreement provides), were misleading and/or that the Australian Federal Police (AFP) did not comply with the obligation to take all reasonable steps to ensure that the terms of the agreement, and their effect, were explained to the relevant employees.
As noted, clause 48 of the Agreement is entirely consistent with the AFP’s communications to employees. It does not provide for an exception in respect of employees on higher duties allowance as a Band 9. There is no proper evidentiary basis for Mr Budd’s premise, and even if there were, it would be a matter of enforcement of the Agreement in the appropriate jurisdiction if the AFP were to implement clause 48 in the way Mr Budd believes it intends to.
Grounds 4 and 5 concern Mr Budd’s claim that the respondent’s position throughout bargaining was that it was “legally bound” by the APSC Policy et al. Mr Budd claims that that is not true or at least that Deputy President Dean (and now this Full Bench) should decide whether the APSC Policy is legally binding on the AFP.[15] Mr Budd contends that as a result, the Agreement was not genuinely agreed to by the employees covered and lacks moral authority, because had employees “known that premise was false they would not have agreed to the EA as proposed”.[16]
Mr Budd has filed voluminous material including 806 pages of attachments to the notice of appeal. Neither in the Form F7 nor his submissions regarding permission to appeal, does he identify a specific statement by the AFP that it is “legally bound” by the APSC Policy. The attachments to the notice of appeal include several documents that allege “hypocrisy with regards to the APSC’s Policy et al” and similar.[17] These documents include that during bargaining meetings for the Agreement “whenever the Policy et al was discussed the AFP was at pains to make its position extremely clear. That position was (1) the AFP was bound (or required or must or similar) to follow the Policy et al, and (2) even if the AFP was not bound, it was open to the AFP to strictly follow the Policy et al and the AFP intended to strictly follow the Policy et al.”[18]
Firstly, it has not been established that a statement by the AFP that it was ‘legally bound’ was either made or that such a statement would be false. Even if it had been made and was false, the AFP had indicated that even if it were not bound to follow the Policy, it could and would do so. In other words, the AFP’s position was that it was going to follow the Policy, whether required (strictly legally or otherwise) to do so or not. It is well established that parties can take a tough line during bargaining and are not required to make concessions. Doing so, which at its highest is what the AFP is said to have done here, does not invalidate the Agreement.
Grounds 6 and 7 relate to a claim that clause 61 dealing with Parental Leave is (or includes) an unlawful term. Mr Budd submits that the Deputy President erred in not considering if clause 61 was an unlawful term, and that the clause is, in fact, an unlawful term and as a result, the Agreement could not be approved.
Section 186 provides that the Commission must approve an application for approval of an enterprise agreement made under ss 182(4) or s 185 if the requirements in s 186 and 187 are met. These requirements include at s 186(4), that the Commission must be satisfied that the agreement does not include any unlawful terms.
Mr Budd submits that clause 61 discriminates on the ground of pregnancy by imposing more stringent and detrimental conditions on pregnant Primary Caregivers accessing paid parental leave than non-pregnant Primary Caregivers. In particular, pregnant Primary Caregivers are said to be required to commence their paid parental leave 6 weeks prior to the date of birth and to take 12 weeks of the paid leave in a block.
Clause 61 of the Agreement provides various entitlements to parental leave, including an entitlement to 18 weeks’ paid leave for a Primary Caregiver. Primary Caregivers are defined for the purposes of clause 61 to mean “a pregnant employee with an entitlement under the Maternity Leave Act, or an employee other than a Casual employee who has primary care responsibility for a child who is born to them …”[19] Clause 61(7) confers an entitlement of up to 18 weeks’ paid leave to Primary Caregivers. Employees who have an entitlement to 12 weeks’ paid leave under the Maternity Leave (Commonwealth Employees) Act 1973 (Cth) (Maternity Leave Act), are entitled to additional paid parental leave to a total of 18 weeks. Employees who have no eligibility or coverage under the Maternity Leave Act are entitled to 18 weeks’ paid parental leave. The Agreement does not incorporate the Maternity Leave Act, rather clause 61 refers to the entitlements under the Maternity Leave Act for the purpose of identifying that the 18 week’s paid Parental Leave under the Agreement includes paid maternity leave for eligible and covered employees under the Maternity Leave Act.
In relation to the first issue, the Maternity Leave Act does not impose an absolute requirement to commence parental leave 6 weeks prior to the expected date of birth. Section 7 provides that a shorter period can apply. It is therefore not the case that all pregnant Primary Caregivers are required to commence Parental Leave six weeks before the expected date of birth and non-pregnant Primary Caregivers are not. Mr Budd’s concerns are directed at the Maternity Leave Act, rather than the Agreement, which to a limited extent applies the Maternity Leave Act. We also do not consider that the Maternity Leave Act itself discriminates against pregnant employees. The Maternity Leave Act does not apply to all relevant pregnant employees, nor does it confer an entitlement on all employees covered by it to 12 weeks’ paid leave. It does not, for example, apply to employees who are not entitled to paid sick leave (such as casual employees),[20] nor to employees who have not completed 12 months’ continuous service.[21] Accordingly, any differential treatment under the Maternity Leave Act is not on the basis of the attribute of being pregnant, but on the pregnant woman’s employment status and/or period of continuous service.
In relation to the second issue, the Agreement expressly provides in clause 61(9) that parental leave with pay, whether provided as maternity leave under the Maternity Leave Act or under the Agreement, can be accessed flexibly during the Parental Leave period and does not have to be taken in a single block. In our view, this displaces the provision in section 6(1)(b) of the Maternity Leave Act that an eligible employee commences maternity leave 6 weeks before the expected date of birth and continues until 6 weeks after the date of her confinement.
For these reasons we do not consider there to be an arguable case that clause 61 of the Agreement is a discriminatory, and therefore unlawful, term.
In relation to Grounds 6 and 7, a further compelling consideration against granting permission to appeal arises: the appeal lacks utility. Even if there had been an error, and the Agreement does contain an unlawful term, section 253 of the Act provides that a term of an enterprise agreement that is an unlawful term, has no effect. It might be said that allowing an appeal and a full ventilation of the issue and determination by a Full Bench on the issue would remove a level of uncertainty. However, that is not the case. Any determination by a Full Bench in dealing with an appeal against approval of an enterprise agreement as to whether the Agreement contained an unlawful term would not be binding in any subsequent judicial determination of the issue. Accordingly, consideration by a Full Bench would not remove any uncertainty that might be said to exist as to whether the Agreement includes an unlawful term.
In any event, even if the Deputy President had erred by including in the Agreement an unlawful term, this would not have been a jurisdictional error and would not have precluded approval of the Agreement. The Full Court in Australian Industry Group v Fair Work Australia[22] when considering similar contentions that the Commission had committed jurisdictional error in approving an enterprise agreement that included several allegedly discriminatory terms, held that any such error would not have constituted jurisdictional error. The Full Court held that it is clear from the existence of s 253(1)(b) of the Act that “it was not the intention of the legislature that an erroneously based satisfaction under s 186(4) would invalidate the approval of an enterprise agreement in its totality.”[23]
Grounds 8 and 9 of the appeal, which are premised on the Agreement containing an unlawful term, fall away in light of our conclusion that the Agreement does not contain any such term.
For these reasons, we do not consider that the grounds of appeal disclose any appealable error.
There is another compelling consideration that has led us to refuse permission to appeal. Mr Budd did not raise any objection to approval of the Agreement prior to its approval. He was aware of the need to do so and had in fact done so in relation to the application for approval of the predecessor agreement. Mr Budd is very familiar with bargaining and is an experienced litigant in the Commission. Whilst the Agreement was approved by the Deputy President promptly (and as rightly acknowledged by Mr Budd, to her credit), we are satisfied that Mr Budd had a sufficient opportunity to raise his objections to approval of the Agreement prior to its approval.
At the hearing Mr Budd relied on his status as a self-represented party and non-lawyer and submitted that in the time between when the application for approval was lodged and then approved, he was otherwise preoccupied in dealing with other proceedings in the Commission, and he had been unable to turn his mind to lodging an objection to approval of the Agreement. We are not satisfied that that is an acceptable explanation for failing to at least communicate his intention to object to the approval of the Agreement. The authorities are clear that it is strongly against the public interest to allow a person to raise issues that were not raised at first instance for the first time on appeal. We consider that the circumstances before us are analogous, and that it would be contrary to the public interest to allow Mr Budd to appeal the approval of the Agreement when he had an opportunity, but elected not to, object to its approval. That is perhaps even more compelling in this case, where allowing an appeal would introduce a level of uncertainty for the very large number of employees covered by the Agreement.
The respondent has made an application for costs. That application will be dealt with by the Presiding Member, and directions will be issued in due course.
Order and disposition
Permission to appeal is refused.
The respondent’s application for costs will be listed to be dealt with by the Presiding member.
DEPUTY PRESIDENT
Appearances:
C. Budd, the Appellant, appearing on his own behalf
L. Howard of Counsel, with permission on behalf of the Respondent.
Hearing details:
2025
5 February
(video hearing)
[1] [2024] FWCA 4231 (Decision)
[2] Witness Statement of Sarah Doery dated 17 December 2024.
[3] Section 607(2) of the Act, Fox v Percy (2003) 214 CLR 118 at [22]; Akins v National Australia Bank (1994) 34 NSWLR 155 cited in Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6936.
[4] [2018] FWCA 2776; AE428393.
[5] [2018] FWCFB 6095.
[6] As defined in Attachment 1 to Form F7 Notice of Appeal at [76].
[7] Attachment 1 to Form F7 Notice of Appeal.
[8] Ibid.
[9] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].
[10] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[12] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[13] Witness Statement Christopher Budd dated 17 December 2024 at [17-18].
[14] Transcript 5 February 2025 PN149.
[15] Attachment 1 to Form F7 Notice of Appeal at [84], [86]-[88].
[16] Ibid at [82].
[17] See for example, Affidavit of Christopher Budd in B2024/824 undated, unsigned at [51].
[18] Ibid at [51].
[19] The Agreement, clause 7.
[20] Maternity Leave Act, s 5(3)(e).
[21] Maternity Leave Act, s 6(4).
[22] [2012] FCAFC 108.
[23] Ibid at [44].
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