Construction, Forestry, Maritime, Mining and Energy Union v Boom Logistics Limited
[2019] FWCFB 306
•21 JANUARY 2019
| [2019] FWCFB 306 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
v
Boom Logistics Limited; WGC Crane Group Pty Ltd
(C2018/5215;C2018/5218)
DEPUTY PRESIDENT SAMS | SYDNEY, 21 JANUARY 2019 |
Appeal against decision [[2018] FWC 5634] of Deputy President Dean at Sydney on 6 September 2018 in matter number C2018/4742 and appeal against decision [2018] FWC 5101 of Deputy President Dean at Sydney on 31 August 2018 in matter number C2018/4637.
[1] The Construction, Forestry, Maritime, Mining and Energy Union (the Appellant) has applied under s.604 of the Fair Work Act 2009 (Cth) (the Act) for permission to appeal and has appealed against two decisions and orders made by Deputy President Dean in WGC Crane Group Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union 1 and Boom Logistics Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union.2The first decision dealt with an application by WGC Crane Group Pty Ltd (WGC) and the second with an application by Boom Logistics Limited (Boom)(collectively “the Respondents”) for orders under s.418 of the Act, in respect of notices given by the Appellant of purported protected industrial action, which the Respondents contended was not, or would not be protected action. This was because the Respondents maintained that the Appellant is engaging in a course of conduct that is pattern bargaining within the meaning of s.412. The appeal was listed for hearing on an expedited basis at the request of the Appellant.
[2] In our decision published on 8 October 2018 3 we determined to deal only with grounds 9 and 10 of the Notices of Appeal. These grounds concerned the form and duration of the orders made by the Deputy President. We upheld these grounds of appeal and varied the orders.4 We also indicated that we would separately, and at a later date, issue our decision on the remaining grounds of appeal.5
[3] Since reserving our decision we became aware that the Appellant appears to have altered its bargaining position in respect of the claims being pursued for proposed agreements with the Respondents, that applications for orders under s.418 by the Respondents in respect of industrial action threatened in support of proposed agreements were sought and refused 6 and that enterprise agreements the product of the bargaining have since been made which will cover, inter alia, the Respondents and the Appellant.
[4] By the remaining appeal grounds (grounds 1 to 5, 7 and 8) the Appellant contended that the Deputy President:
• erred in failing to accept that it is necessary for all the terms sought to be included in the proposed agreements be identical for the purposes of s.412(1)( b) of the Act. As a consequence, the Deputy President wrongly concluded that the Appellant was engaged in a course of conduct that was pattern bargaining; and
• proceeded on the incorrect basis that a bargaining representative could not be genuinely trying to reach agreement unless it shifted its position or made substantial concessions on matters of substance in bargaining. In the result, the Deputy President wrongly concluded that the Appellant was not genuinely trying to reach agreement for the purposes of s.412(2) of the Act.
[5] Grounds 7 and 8 of the Notices of Appeal merely set out the consequences that flow from the errors asserted by grounds 1–5.
[6] In essence the remaining appeal grounds raised for consideration the proper construction of s.412 and its application to the factual matrix raised by the conduct of the Appellant in bargaining with the Respondents.
[7] Given the changed circumstances noted earlier, we formed a preliminary view that there is no longer any utility in determining the remainder of the appeal grounds. We considered the questions requiring determination were now of academic interest rather than serving to resolve any outstanding issue affecting the parties to the appeals. We allowed the parties an opportunity to file short submissions addressing whether there remained any utility in determining the balance of the appeals. 7
[8] All parties to the appeals now agree there is no utility in the Full Bench determining the remaining appeal grounds. 8 In the circumstances, and noting that Appellant did not press ground 6 of the Notices to Appeal,9 we propose to dismiss appeal grounds 1 to 5, 7 and 8.
Conclusion
[9] We order that appeal grounds 1 to 5, 7 and 8 of the Notices of Appeal are dismissed.
DEPUTY PRESIDENT
Appearances:
H Borenstein QC and P Boncardo of Counsel for the Appellant.
I Taylor SC and O Fagir of Counselfor the Respondents.
Hearing details:
2018.
Sydney:
October 3.
Final written submissions:
Appellant, 14 January 2019
Respondents, 18 January 2019
Printed by authority of the Commonwealth Government Printer
<PR703962>
1 [2018] FWC 5101
2 [2018] FWC 5634
3 Construction, Forestry, Maritime, Mining and Energy Union v Boom Logistics Limited; WGC Crane Group Pty Ltd[2018] FWCFB 6200
4 Ibid at [43]
5 Ibid at [42]
6 See WGC Crane Group Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] FWC 6330, Boom Logistics Limited v Construction, Forestry, Maritime, Mining and Energy Union [2018] FWC 6331, WGC Crane Group Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union[2018] FWC 6383 and Boom Logistics Limited v Construction, Forestry, Maritime, Mining and Energy Union [2018] FWC 6416
7 Email from Deputy President Sams Chambers to Parties on 8 January 2019
8 Email from the Appellant to Deputy President Sams Chambers on 14 January 2019; Email from the Respondents to Deputy President Sams Chambers on 18 January 2019
9 Transcript of proceedings dated 3 October 2018 at PN249
0
7
0