Construction, Forestry, Maritime, Mining and Energy Union v Downer EDI Mining - Blasting Services Pty Ltd & Morris, Michael
[2018] FWCFB 3703
•25 JUNE 2018
| [2018] FWCFB 3703 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union v Downer EDI Mining – Blasting Services Pty Ltd & Morris, Michael and Others
(C2018/3097)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 25 JUNE 2018 |
Appeal against Decision [2018] FWCA 2888 of Commissioner Johns at Sydney on 22 May 2018 – administrative error – appeal upheld – decision quashed – Agreement approval application remitted to Commissioner Johns for determination.
[1] This decision concerns an appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) against a decision 1 by Commissioner Johns (the Decision) to approve the Downer EDI Mining – Blasting Services NSW Coal Enterprise Agreement 2018 (the Downer Agreement).
[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is by way of rehearing and the Commission’s powers on appeal are only exercisable if the decision is affected by error. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[3] Subsection 604(2) 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. 3 The public interest is not satisfied simply by the identification of error,4 or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
‘... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...’ 6
[4] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 7
[5] The circumstances giving rise to this appeal are somewhat unusual. It is common ground that the Decision subject to appeal was issued through administrative error, without the knowledge or consent of the Commissioner.
[6] The Decision was made under Division 4 of Part 2-4 of the Act and as such falls within the scope of the exclusion in s.603(3)(b), and as a consequence it is not able to be revoked pursuant to s.603(1). Nor does it appear that the revocation of such a decision is a matter that properly falls within the scope of s.602 (the ‘slip rule’ power).
[7] The parties have consented to the appeal being heard without a hearing (s.607(1)(b)) and we are satisfied that the appeal can be adequately determined without persons making oral submissions (s.607(1)(a)). Accordingly, we have decided, pursuant to s.607(1) to conduct the appeal without holding a hearing.
[8] The parties have reached a consent position in respect of the determination of the appeal, in particular it is common ground that:
(i) permission to appeal be granted;
(ii) the appeal be upheld;
(iii) the Decision be quashed; and
(iv) the application for the approval of the Agreement be remitted to Commissioner Johns.
[9] Given that the Decision was issued without the Commissioner’s knowledge or consent it would not be in the interests of justice to allow the Decision to stand. Accordingly we will grant permission to appeal, quash the Decision and remit the application to approve the Downer Agreement to Commissioner Johns.
PRESIDENT
1 [2018] FWCA 2888
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
4 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[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]
6 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
7 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
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