Construction, Forestry, Maritime, Mining and Energy Union v Port Kembla Coal Terminal Limited
[2021] FWCFB 6074
•22 DECEMBER 2021
| [2021] FWCFB 6074 |
| FAIR WORK COMMISSION |
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 | 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
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1 [2021] FWC 5626
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