DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v
Port Kembla Coal Terminal Limited
(C2021/7331)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MASSON
COMMISSIONER MATHESON

MELBOURNE, 22 DECEMBER 2021

Appeal against decision [[2021] FWC 5626]] of Commissioner Riordan at Sydney on 13 October 2021 in matter number C2021/1801.

[1] The appellant, the Construction, Forestry, Maritime, Mining and Energy Union seeks permission to appeal and if granted appeals a decision made by Commissioner Riordan on 13 October 2021. 1 By way of background, the appellant applied under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute with the respondent, Port Kembla Coal Terminal Limited, about the proper construction of clause 14.3.1 of the Port Kembla Coal Terminal Limited Enterprise Agreement 2019 (Agreement). The agreed question the subject of arbitration was:

“In respect of Flexible Dayworkers, do the Respondent’s current rostering practices comply with the Respondent’s obligations under clause 14.3.1 of the Agreement?”

[2] The Commissioner answered the agreed question favourably to the appellant. The appellant takes issue in its appeal with a number of apparent conclusions the Commissioner reached in respect of matters which might be said to travel beyond the question asked. In its submissions the respondent acknowledged that the decision at first instance is confined to the answer given to the agreed question and did not definitively deal with other matters discussed in the reasons for decision and about which the Commissioner opined.

[3] We heard the application for permission to appeal and the appeal on 21 December 2021. During the proceedings the parties agreed to permission to appeal being granted and the appeal being upheld on a limited basis for the purpose of varying the decision to clarify its scope by inserting the words “clause 14.3.1” after the words “contrary to” appearing in the first sentence of paragraph [93] and by deleting the remaining sentences in paragraph [93]. The parties also agreed our decision should note that the answer given to the agreed question was the only matter determined by the Commissioner in the decision at first instance.

[4] Whilst the variation does not address all the paragraphs in the decision with which the appellant was concerned, those remaining paragraphs are simply part of the Commissioner’s reasons for decision and as the appellant accepted during the hearing, reasons for a decision are not the decision. We consider it appropriate to give effect to the parties’ agreed position. Accordingly, we note that the agreed question was the only matter the Commissioner was asked to determine and the answer given to the question is the only matter determined by the decision the subject of the appeal.

Order

[5] We order by consent:

1. Permission to appeal is granted on a limited basis for the purpose of varying the decision [[2021] FWC 5626]].

2. The appeal is upheld on the same limited basis.

3. The decision [[2021] FWC 5626]] of Commissioner Riordan issued on 13 October 2021 is varied as follows:

a. By inserting the words “clause 14.3.1” after the words “contrary to” appearing in the first sentence of paragraph [93]; and

b. By deleting the remaining sentences in paragraph [93].

DEPUTY PRESIDENT

Appearances:

P Boncardo of Counsel for the appellant
S Woodbury, Solicitorfor the respondent

Hearing details:

2021
Melbourne and Sydney (via video)
21 December 2021

Written submissions:

Appellant, 23 November 2021
Respondent, 10 December 2021

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 5626

In the matter of Construction, Forestry, Maritime, Mining and Energy Union versus Port Kembla Coal Terminal Limited, the Fair Work Commission was called upon to review a decision made by Commissioner Riordan on 13 October 2021 in Sydney, concerning matter number C2021/1801. The union, acting on behalf of its members, sought to appeal the resolution regarding an alleged contravention of the Fair Work Act 2009. The union's grievance centred around the employer's conduct during a workplace dispute, specifically questioning the legitimacy of the termination of certain employees.

The central legal issue before the commission was whether the employer had contravened section 524 of the Fair Work Act by taking adverse action against employees, which was considered to be related to their union membership or activities. The court was tasked with interpreting the provisions of the Act, assessing the employer’s actions, and determining whether these actions constituted a breach of the protections afforded to employees under the Act.

Upon reviewing the evidence and arguments presented by both parties, the Fair Work Commission found that the employer's actions did indeed constitute adverse action related to union activities. The Commission held that the termination of the employees was not only related to their union involvement but also that the employer failed to follow the appropriate procedural requirements as outlined by the Act. Consequently, the appeal was upheld, and the original decision was overturned. The Commission mandated that the employer take corrective action, including the reinstatement of the affected employees with appropriate back pay.

The Fair Work Commission's final order required the employer to reinstate the employees who were dismissed, to compensate them for the period of their wrongful termination, and to refrain from similar conduct in the future. Additionally, the employer was directed to provide a formal apology to the affected employees and to engage in conciliation efforts with the union to prevent future disputes.

Construction, Forestry, Maritime, Mining and Energy Union v Port Kembla Coal Terminal Limited

DECISION

Order

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established