Construction, Forestry, Maritime, Mining and Energy Union v SRG Global Industrial Services Pty Ltd
[2021] FWCFB 3901
•7 JULY 2021
| [2021] FWCFB 3901 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
v
SRG Global Industrial Services Pty Ltd
(C2021/2753)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 7 JULY 2021 |
Appeal against decision [2021] FWC 1924 of Commissioner Williams at Perth on 5 May 2021 in matter number B2021/120.
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission is required, against a decision of Commissioner Williams made on 5 May 2021. In the decision, the Commissioner dismissed an application by the CFMMEU under s 236 of the Fair Work Act 2009 (Act) for a majority support determination in respect of a proposed single enterprise agreement covering employees of SRG Global Industrial Services Pty Ltd (SRG) at its yard in Wangara in Western Australia. The Commissioner upheld SRG’s objection that the application was incompetent because it was not made by a bargaining representative who would be covered by the proposed agreement, as required by s 236. The Commissioner’s reason for this conclusion was that contrary to the requirement of s 176, the CFMMEU was not entitled to represent the industrial interests of the only employee whose work the CFMMEU claimed to cover, Mr Thorpe, who is employed by SRG as a leading hand in the yard.
[2] The CFMMEU’s notice of appeal contains four grounds of appeal. Grounds 1 and 2 contend that the Commissioner erred in concluding that it was not a bargaining representative for the proposed enterprise agreement because Mr Thorpe’s circumstances fell within Rule 2(E)(a) and Rule 2(Q)(5)(a) of the CFMMEU’s registered rules. Ground 3 contends that the Commissioner erred in failing to give proper reasons for his conclusion that Mr Thorpe was not an engine driver for the purposes of Rule 2(Q)(5).
[3] After the listing of the appeal for hearing, the solicitors for SRG wrote to the Commission to advise that the company accepted that the Commissioner had made an error of law by failing to give proper reasons for his decision as alleged by ground 3 in the notice of appeal. The parties submitted a draft minute of proposed consent orders by which the Commission would order that permission to appeal be granted under s 604(1) of the Act, that the appeal be upheld and the decision be quashed, and that the matter be remitted to the Commissioner for redetermination under s 607(3)(c) of the Act.
[4] The Full Bench advised the parties that it considered that the question of whether a member has made an error of law as alleged in a notice of appeal was a matter that ought to be determined by a decision Full Bench rather than being left to a consent position of the parties. The parties were requested to advise the Full Bench whether they consented to the determination of the appeal on the papers. In this regard, the CFMMEU had already filed written submissions in support of its appeal, and it was proposed by the Bench that the parties be afforded additional time to file any further submissions they may wish to make. The parties advised the Full Bench that they consented to the appeal being determined on the papers. We are satisfied that the appeal can be adequately determined without oral submissions (see s 607(1)).
[5] We will consider ground 3 of the notice of appeal first, as it is the joint position of the parties that this appeal ground should be upheld, on the basis that the Commissioner failed to give proper reasons for his conclusion that Mr Thorpe was not an engine driver for the purposes of Rule 2(Q)(5).
[6] In the decision, the Commissioner set out the relevant provisions of the Act, including s 176, and then summarised the evidence given by Mr Thorpe about his duties noting in particular, that Mr Thorpe drives a forklift every shift for a least five to six hours. The Commissioner then set out rule 2E(a), which covers ‘forklift drivers’, but contains a proviso in respect of ‘operators of forklifts … engaged in the transport of goods by road’, who are stated not to be eligible for membership of the union. The Commissioner then considered the significance of the decision of Gostencnik DP in CFMMEU v Qube Logistics[2021] FWC 929 (Qube) which had considered the proviso in this rule. At [35] the Commissioner noted the submission of the company to the effect that the Deputy President’s conclusion in Qube was that the provision was exclusionary in nature and, if applicable, would render Mr Thorpe ineligible for membership. After further considering the decision in Qube, the Commissioner said:
“[38] In this case, it is important for the Commission to decide whether Mr Thorpe, who is a leading hand yard worker who operates a forklift, is “engaged in the transport of goods by road”. If he is, then he falls within the exclusionary proviso and is not eligible to be a member of the Applicant, and so, this application must fail.”
[7] The Commissioner went on to state that the company was leasing scaffolding, porta-loos and sheds to clients, that the work in the yard involved preparing orders and then loading the objects onto trucks for delivering, and that Mr Thorpe was engaged in loading and unloading those trucks. The Commissioner then stated that, applying the approach to the proviso adopted in Qube, Mr Thorpe was an operator of a forklift engaged in the transport of goods by road. The Commissioner concluded:
“[45] Mr Thorpe therefore falls within the exclusionary proviso of Rule 2(E)(a) and is not eligible to be a member of the Applicant.”
[8] It was in this context that the Commissioner then turned to consider the CFMMEU’s contention that Mr Thorpe was in any case eligible to be a member of the union because of Rule 2(Q)(5), which concerned additional eligibility for membership in Western Australia. The Commissioner stated that he was not persuaded that the CFMMEU’s contention was correct. The Commissioner said:
“[47] Even if Mr Thorpe is an engine driver, which I do not accept, this ignores the second paragraph of Rule 2(Q) which states the provisions of Rule 2(Q) do not extend and are not intended to operate as extending the eligibility rules of the Union beyond those of the Construction, Forestry, Mining and Energy Union of Workers and this provision applies regardless of any term or other provision of Rule 2(Q). Therefore, it is my view that Rule 2(Q) cannot operate, as the Applicant submits it does to overcome the exclusionary proviso of Rule 2(E).
[48] I am not satisfied that Mr Thorpe is eligible to be a member by virtue of Rule 2(Q)(5).
[49] Having concluded that Mr Thorpe is not eligible to be enrolled as a member of the Applicant, it is my decision that this application must be dismissed.” (footnotes omitted)
[9] Members of the Commission are obliged to give adequate reasons for their decisions (see for example Barach v UNSW [2010] FWAFB 3307 at [16]). A failure to give adequate reasons is an error of law because it results in a denial of procedural fairness (Edwards v Giudice (1999) 169 ALR 89 at [44]).
[10] The CFMMEU’s written submissions contended that the Commissioner recorded a bald conclusion at [47] that he was not satisfied that Mr Thorpe was an engine driver, and that he failed to articulate any grounds for reaching that decision and did not address the material issues of fact and law which disclosed the steps leading to this finding. The CFMMEU contended that, in order to give proper reasons, the Commissioner was required to identify the basis for his decision that Mr Thorpe was not an engine driver for the purposes of Rule 2(Q)(5) and the extent to which the arguments of the parties in relation to this matter had been understood and accepted; he needed to ‘enter into’ the issues canvassed and explain why one case was preferred over the other. The CFMMEU contended that the Commissioner had not done these things, and had thereby denied it procedural fairness and committed jurisdictional error.
[11] The Commissioner’s conclusion that Mr Thorpe was not an engine driver for the purpose of Rule 2(Q)(5) was undoubtedly brief and no reasons are expressly stated. Had the Commissioner’s conclusion in relation to the question of whether Mr Thorpe was an engine driver been relevant to the determination of the application, the contentions of the CFMMEU that the Commissioner failed to give proper reasons would have had force. However, the Commissioner had already decided that the application must be dismissed for other reasons. The Commissioner had accepted the company’s contention that the proviso in Rule 2(E)(a) was an exclusionary provision, and that if Mr Thorpe’s work fell within it, he was not eligible for membership of the union.
[12] Having made clear at [38] that the application for a majority support determination ‘must fail’, the Commissioner was under no obligation to provide further reasons in respect of the parties’ alternative submissions. The CFMMEU had contended that, regardless of the position with respect of the Rule 2(E)(a), Mr Thorpe was eligible for membership under Rule 2(Q)(5). The Commissioner clearly understood this contention (see [46]), and rejected it, because he had already determined that the application must fail. The Commissioner’s observations on the CFMMEU’s contentions in respect of Rule 2(Q)(5) were entirely discretionary, and his decision not to elaborate on his view that Mr Thorpe was not an engine driver must be understood in this context.
[13] In these circumstances, we do not consider that the Commissioner erred by failing to give proper reasons for decision in relation to his conclusion that Mr Thorpe was not an engine driver for the purposes of Rule 2(Q)(5). There being no arguable case of error in respect of ground 3, we refuse permission to appeal on this basis.
[14] There remain for consideration in the appeal grounds 1 and 2 in the notice of appeal. We note that the parties advised the Full Bench that they did not wish to make any further submissions in relation to the appeal generally. However, before proceeding to determine the remaining appeal grounds, we consider it appropriate to seek confirmation from SRG that it does not wish to address appeal grounds 1 and 2 (noting that the CFMMEU has filed written submissions but that SRG has not, and that SRG’s support for the consent position in the appeal was confined to appeal ground 3). We also consider it appropriate to afford both parties an opportunity to make any submission as to further programming of the appeal.
Conclusion
[15] We order as follows:
• Permission to appeal on ground 3 in the notice of appeal is refused.
• Within seven days the parties are to make any submission to the Full Bench concerning the further programming of the appeal.
DEPUTY PRESIDENT
Determined on the papers
Printed by authority of the Commonwealth Government Printer
<PR731359>
0
4
0