Construction, Forestry, Mining and Energy Union and R Flanegan v Transfield Services (Australia) Pty Ltd
[2015] FWCFB 1061
•26 FEBRUARY 2015
| [2015] FWCFB 1061 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
R Flanegan
v
Transfield Services (Australia) Pty Ltd
(C2014/6766)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 26 FEBRUARY 2015 |
Appeal against decision [2014] FWC 6498 of Senior Deputy President O’Callaghan at Adelaide on 24 September 2014 in matter number C2013/5936 - Permission to appeal refused.
[1] This is an appeal made by the Construction, Forestry, Mining and Energy Union (CFMEU) against a decision of 24 September 2014 by Senior Deputy President O’Callaghan, 1 concerning a dispute between its member – Mr R Flanegan (Mr Flanegan) – and Transfield Services (Australia) Pty Ltd (the Respondent) about the application of clause 7.6—Camping Allowance – of the Transfield Services (Santos Hydrocarbons Production & Processing Facilities) Project Work, Maintenance Services and Central Resource Management Enterprise Agreement 20122(the Agreement).
[2] Senior Deputy President O’Callaghan made two decisions in relation to the dispute:
● a decision of 12 March 2014 3 (the first decision); and
● a decision of 24 September 2014 4 (the second decision) [Jointly referred to as the two decisions].
Preliminary matters
[3] Several preliminary issues arose at the commencement of the appeal:
1. The Respondent contended that both decisions of Senior Deputy President O’Callaghan contained an error which should be corrected pursuant to s.598 of the Fair Work Act 2009 (the Act), in that the head notes identified the CFMEU as the applicant, rather than Mr Flanegan, notwithstanding the agreement of the parties and the Senior Deputy President’s decision that the dispute application be amended to name Mr Flanegan, rather than the CFMEU, as the applicant. 5 The CFMEU which represented Mr Flanegan (and itself) did not oppose the correction. We decided on transcript to correct each decision to name Mr Ryan Flanegan as the applicant.6
2. Consistent with its point about the applicant in the dispute, the Respondent submitted that the appeal was brought by Mr Flanegan, rather than the CFMEU and the appeal notice should be amended to record Mr Flanegan as the Appellant, rather than the CFMEU which, the Respondent contended, lacked standing to bring the appeal. The CFMEU did not oppose the amendment of the appeal notice to add Mr Flanegan as an appellant together with the CFMEU (the Appellants). We decided on transcript to amend the notice of appeal to join Mr Flanegan as an appellant, together with the CFMEU:
“We will amend the notice of appeal to name Mr Ryan Flanegan as the appellant, together with the CFMEU. In respect of the CFMEU, we are satisfied that it is a person aggrieved, it has an interest beyond that of a normal person to bring an appeal against a decision of O’Callaghan SDP, given it has at least one member subject to the agreement and other members may be now or into the future subject to the agreement, and the CFMEU is covered by the agreement.” 7
3. Thirdly, the Respondent submitted that the appeal notice disclosed that, whilst the appeal was directed against the second decision by Senior Deputy President O’Callaghan, it was in reality directed against his first decision and the Appellants would need to apply to amend the appeal notice to include the first decision as being subject to the appeal and apply for an extension of time to bring an appeal against that decision. In respect of this submission we decided:
“The dispute before O’Callaghan SDP brought by Mr Flanegan was a dispute about the operation of the agreement as it applied to him. That dispute was finally determined in the second decision of O’Callaghan SDP. The circumstances in the current appeal in the UFU matter 8 are comparable insofar as the first decision appealed against in this matter dealt with issues that was necessary for O’Callaghan SDP to decide in order to allow him to reach his final determination of the dispute raised by Mr Flanegan. As noted in UFU, the applicable legal principle is that on appeal from a final decision or an order, an appellate court can correct an interlocutory decision or order which affected the final result.”9
Background to the decision of 24 September 2014 by Senior Deputy President O’Callaghan
[4] On 6 September 2013, the CFMEU lodged an application pursuant to s.739 of the Act and the dispute resolution provisions of the Agreement. The central issue in dispute relates to the circumstances under which payment of a camping allowance is due under clause 7.6 of the Agreement, which states:
“7.6 Camping Allowance
Where all reasonable avenues have been exhausted and it is necessary to camp out overnight because an employee cannot return to Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie the employee will be paid a camping allowance as set out in Schedule 2.
This allowance will not be paid when the employee can be accommodated in these locations.”
[5] Hereafter, we refer to “Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie” as “the named locations”.
[6] In brief terms, the Appellants had contended before Senior Deputy President O’Callaghan that clause 7.6 of the Agreement requires that the “camping allowance” be paid to an employee who cannot be accommodated at the named locations, although they submitted in reply submissions of 6 November 2013 that the expressions “‘camp’ or ‘camping out’ ought to be construed broadly to include the nature and standard of accommodation provided but also the place or location of the camp and the level of comfort afforded at that place”. 10
[7] The Respondent contended that clause 7.6 does not require that the “camping allowance” be paid to an employee who cannot be accommodated at the named locations: eligibility for the camping allowance depends primarily upon the standard of accommodation offered; the “camping allowance” is required to be paid to an employee who is accommodated at a lesser standard of accommodation than they would enjoy if accommodated at the named locations.
[8] The dispute was dealt with by Senior Deputy President O’Callaghan in accordance with clause 17—Disputes & Grievance Settling Process – within the Agreement. Following conciliation, the dispute was determined by the Senior Deputy President, through arbitration, by way of the two decisions.
[9] By agreement of the parties, the arbitration proceeded on the basis of written submissions and materials. 11 As a result there were no hearings and witness statements filed by each party, were not subject to the usual course of admission under oath or affirmation or subject to an opportunity for cross-examination.
[10] In respect of the first decision, written submissions were filed as follows:
● The Appellants filed submissions – on 14 October 2013 12 and 6 November 2013,13 which addressed jurisdiction, the issues in contention, principles of construction, the meaning of “all reasonable attempts” and “necessary to camp out” in clause 7.6 of the Agreement and the standard location/place of accommodation and responsive submissions in relation to the Respondent’s submissions about the history of clause 7.6 and the nature of accommodation.
● The Respondent filed submissions on 18 October 2013 14 and 6 November 2013.15 The submissions addressed jurisdiction, the background to the work and accommodation conditions, including “camping allowance” provisions in predecessor Agreements, the meaning of “camp out” and The Australian Workers’ Union (AWU) camping out claim in the negotiations leading to the Agreement, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) claim in respect of the camping allowance in the negotiations for the replacement of the Agreement and “perverse” outcomes which it contended would arise from the CFMEU position.
[11] On 23 December 2013, Senior Deputy President O’Callaghan issued further Directions in which he indicated that he had considered the material filed, but in “order to enable a conclusion to be reached with respect to both the jurisdictional issues and the merits of the application”, invited the “provision of further information” and listed the matter for a hearing on 3 February 2014. Four questions went to the jurisdiction issue raised by the Respondent, which were resolved between the parties. 16 Four questions went to the accommodation of employees during their work cycles.
[12] Submissions responsive to the questions attached to the Further Directions were made by the Appellants on 10 February 2014 17 and included statements from unidentified employees relevant to the jurisdictional questions and the questions of the Senior Deputy President in relation to the accommodation of employees during their work cycles. The Respondent provided submissions responsive to the questions on 10 February 2014.18
[13] Senior Deputy President O’Callaghan then conducted a telephone conference on 20 February 2014. Following this conference further submissions were filed by the Respondents on 25 February 2104 19 which addressed jurisdiction and addressed the Appellants’ submissions of 10 February 2014 rejecting the evidentiary value of the statements from unidentified employees and addressing what camping allowance had been paid to Mr Flanegan, and why, in respect of information filed by the Appellants. The Appellants filed further submissions on 28 February 2014,20 dealing with jurisdiction, accepting the proposal by the Respondent which resolved that issue.
[14] The material before Senior Deputy President O’Callaghan in determining the operation of clause 7.6 of the Agreement in the first decision was extremely limited, notwithstanding his request for additional submissions.
[15] In the first decision, Senior Deputy President O’Callaghan:
● noted the jurisdiction issue raised by the Respondent, and its resolution between the parties; 21
● set out and applied principles applicable to the interpretation of enterprise agreements; 22
● found clause 7.6 to be ambiguous in respect of what is meant by “all reasonable avenues”, “camp out overnight”, and “cannot return to Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie”; 23 and
● considered extrinsic evidence, including the history of the provision, and concluded that the phrase “‘camp out overnight’ must refer to accommodation of a standard less than that which would apply to Transfield employees accommodated at [the named locations]” 24 and that the “determinant for payment of the camping allowance is not simply the employee’s location or absence from the nominated locations”.25
[16] In the first decision, his Honour found that:
“In terms of the issue put to me for resolution, I have concluded that the camping allowance under the Agreement is not automatically applicable in the event that an employee is accommodated outside of Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie. The entitlement to this allowance must be dependent on the standard of accommodation provided to Mr Flanegan at any given time.” 26
[17] Senior Deputy President O’Callaghan then found that the evidence before him did not allow him to assess Mr Flanegan’s claim for payment of the camping allowance on the basis of his interpretation of clause 7.6 of the Agreement. 27 His Honour suggested that the “parties should engage in further discussions in the light of this decision” and if the “matter is not resolved and hence requires further consideration”, it would be relisted for that purpose.28
[18] On 1 April 2014 the CFMEU advised Senior Deputy President O’Callaghan that no agreement had been reached and the matter was brought back on for the purpose of determining the application of clause 7.6 of the Agreement to the circumstances of Mr Flanegan. A substantial amount of material was put before the Senior Deputy President in relation to accommodation standards in various locations. On the basis of his consideration of that material, Senior Deputy President O’Callaghan was not satisfied that any of the “identified accommodation facilities warrant payment of the camping allowance”. 29
[19] It may be seen that in determining the dispute before him as to the application of clause 7.6 of the Agreement to the circumstances of Mr Flanegan, Senior Deputy President O’Callaghan made a decision about the proper application of clause 7.6 in his 12 March 2014 decision and, on 12 September 2014, Senior Deputy President O’Callaghan made a decision about the application of clause 7.6, as determined by him in his 12 March 2014 decision, to the circumstances of Mr Flanegan.
[20] However, the CFMEU also contended that principles of interpretation of enterprise agreements, required consideration of statements provided after the 12 March 2014 decision, by Mr C Fenney of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) and by Mr P Lamps of the AWU, who were both involved in the negotiation of the Agreement. In each case, their statements reflected their understanding that the camping allowance had been negotiated, to the effect that this allowance would be payable whenever an employee was accommodated outside of the named locations. The Respondent provided a statement made out by Mr G Gosling, its Executive General Manager, Industrial Relations, in which Mr Gosling refutes the assertions about what was, or was not, agreed in negotiations about the agreement relative to the camping allowance.
[21] The CFMEU sought, in effect, that Senior Deputy President O’Callaghan revisit his first decision as to the operation of clause 7.6 of the Agreement, on the basis of the statements of Mr Fenney and Mr Lamps. His Honour declined to do so on two bases: 30
● First, the first decision was made on the material before him in circumstances where the “AMWU and AWU were aware of the dispute” and neither they, nor Mr Flanegan or the CFMEU sought to provide the statements of Mr Fenney and Mr Lamps to assist his Honour’s determination of the application of clause 7.6 of the Agreement; and
● “Secondly, Mr Gosling’s statement refutes the position adopted by Mr Fenney and by Mr Lamps” in relation to the negotiation of clause 7.6 of the Agreement and the “contradictory material” in relation to the negotiations would not assist in establishing the appropriate application of clause 7.6.
[22] In his second decision, Senior Deputy President O’Callaghan noted and cited the determination made by him in his first decision 31 and his inability to reach a conclusion in respect of Mr Flanegan’s circumstances on the information before him in respect of his first decision32 and determined the application of the camping allowance in clause 7.6 on the information provided for the purpose of his second decision. Senior Deputy President O’Callaghan was not satisfied that any of the identified facilities “warrant payment of the camping allowance” on the material before him.33
Approach to the appeal
[23] Under clause 17, the Agreement provides for “[D]isputes or claims arising between Transfield Services and its employees or their representatives with respect to any matters affecting work at the Site” to apply to “Fair Work Australia [now the Fair Work Commission (the Commission)] seeking resolution of the grievance via conciliation and/or arbitration”.
[24] Clause 17 does condition a determination by the Commission, such that any determination “shall not be inconsistent with the National Code of Practice for the Construction Industry, the implementation guidelines and other legislative obligations”. It is not suggested that any of these constraints have practical consequences in relation to the determination of the dispute before Senior Deputy President O’Callaghan or on appeal.
[25] Clause 17 of the Agreement does not specifically provide for the parties to the Agreement to have a “right of appeal” against an arbitrated decision of the Commission. Accordingly, the appeal will be generally interpreted as an appeal in accordance with the appeal provisions in the Act, as applied to the nature of the determination required – in this case resolution of a dispute concerning the operation of an enterprise agreement term.
[26] In Australasian Meat Industry Employees Union, The v Golden Cockerel Pty Limited,(Cockerel) 34 the approach of the Commission, on appeal in relation to such a determination, was explained as follows:
“[5] An appeal of a decision is not as of right and permission to appeal must first be obtained. [Section 604(1) of the Fair Work Act 2009] Subsection 604(2) requires the FWC 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. [O’Sullivan v Farrer and Another (1989) 168 CLR 210; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at paras 44–46] The public interest is not satisfied simply by the identification of error, or a preference for a different result. [GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at paras 26–27; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at para 28, affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v The Maritime Union of Australia[2013] FWCFB 8025; and New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663] 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 . . .’ [(2010) 197 IR 266 at para 27]
[6] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified but examples of considerations which would usually justify 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. [Also see Construction, Forestry, Mining and Energy Union v Australian Industrial Registry Commission and Another (1998) 89 FCR 200 and Wan v Australian Industrial Registry Commission and Another (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at para 2328]
[7] The nature of the decision that is the subject of this appeal depends on a consideration of the determinations the Commission was required to make. In this case the Senior Deputy President was resolving a dispute by arbitration by answering questions that involved interpreting the Agreement. There is no discretion involved in such a task. It follows therefore that, if permission to appeal is granted, we must determine whether the interpretation of the Agreement adopted by the Senior Deputy President is correct.” [Pawel v Australian Industrial Registry Commission and Another (1999) 94 FCR 231, in particular at pp. 238–239]
Consideration
[27] There was no apparent difference between the parties in the appeal, either in the matter below and in the appeal, that as to the principles to be applied to the interpretation of an agreement provision are those reflected in Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union; 35 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union;36 Amcor Limited v Construction, Forestry, Mining and Energy Union;37and The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited.38
[28] Those principles were recently summarised by a Full Bench in Cockerel 39 as follows:
“1. The AI (Acts Interpretation) Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
[29] The Appellants submitted that there is “no error” in the decision of Senior Deputy President O’Callaghan “in adopting the approach” reflected in those principles of interpretation. 40 However, the Appellants contended that Senior Deputy President O’Callaghan misapplied them in the circumstances of the dispute before him.
[30] In his first decision, Senior Deputy President O’Callaghan found clause 7.6 of the Agreement to be ambiguous in respect of what was meant by “all reasonable avenues”, “camp out overnight”, and “cannot return to Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie” 41 and their interaction. In doing so, he had regard to surrounding circumstances including the information concerning the location of employees during work cycles and the qualification of “camp out overnight” which would have no work to do within clause 7.6 if the allowance operated on the basis that it became payable simply if an employee was accommodated other than in the accommodation provided by the Respondent at the named locations.
[31] We find that Senior Deputy President O’Callaghan was correct to find that clause 7.6 of the Agreement is uncertain and does not have a plain meaning in light of the qualifying expressions within it.
[32] The Appellants submitted that the Senior Deputy President erred by importing “novel criteria” for the application of the camping allowance that depart from the plain language of clause 7.6 of the Agreement, in deciding that:
“. . . rather than external locational considerations, the criteria for application of the camping allowance should simply relate to:
● single room accommodation,
● serviced accommodation,
● the provision of meals; and
● access to common social amenities or areas.” 42
[33] The Appellants submitted that these matters, raised by Senior Deputy President O’Callaghan, do not arise out of the plain language of clause 7.6 of the Agreement or, if they do, “they arise too remotely from the plain language of that clause”. 43
[34] In fact, the proper application found by Senior Deputy President O’Callaghan, recorded in his first decision, was that:
“On the approach I have adopted, I consider that clause 7.6 means that, in practice, if work allocations to an employee cannot reasonably be made for that employee to be accommodated in a camp of a standard that equates with accommodation at Tirrawarra, Moomba, Dullingari, Ballera, Jackson or Meerenie, then the camping allowance is payable. Hence, I do not consider that the determinant for payment of the camping allowance is simply the employee’s location or absence from the nominated locations.” 44
[35] In effect, his Honour interpreted “camping out” in clause 7.6 of the Agreement to mean accommodated in a lesser standard of accommodation than that which an employee would enjoy if able to return to, and be accommodated at the named locations.
[36] We think the Senior Deputy President was correct to find that there was uncertainty in clause 7.6 of the Agreement in respect of the meaning of clause 7.6 and, having regard to the relevant camping allowance provision reflected in clause 6—Camping Allowance of the predecessor agreements and the claims made in the negotiation of the Agreement with respect to the camping allowance, his conclusions as to the proper operation of clause 7.6 of the Agreement was correct having regard to the material put before him by the parties to the dispute.
[37] The Transfield Services (Santos Hydrocarbons Production & Processing Facilities) Maintenance and Projects Agreement 2004 45 and the Transfield Services (Santos Hydrocarbons Production & Processing Facilities) Maintenance and Projects Agreement 200746 each contained the following provision:
“6. Camping Allowance
Where it is not desirable for an employee to return to the home camp and it is necessary for the employee to camp out overnight, the employee will be paid $26.70 per night. This allowance will not be paid when the employee can be accommodated in a hotel, motel, drilling camp or other such accommodation. This allowance is payable in addition to the payment of isolation allowance under 11.2.
This allowance will apply when employees are required to stay overnight at an intermediate pump house station on the Jackson-Moonie Pipeline.”
[38] The claims made in the negotiation of the Agreement included:
“14. Camp allowance top [sic] be paid where standards in remote camps are not to the same standard as where workers are normally domiciled.” 47
[39] Neither provisions provides evidence of a common understanding as to the operation of clause 7.6 intended by the parties, but they do provide objective background facts known to all parties when the Agreement was negotiated in the context and purpose of the camping allowance. It is plain that over many years leading to the negotiation of the Agreement, the approach to the provision of accommodation involved the provision of accommodation of a particular standard and, where that standard was not met, the payment of an allowance in compensation. Whilst not reflecting a common understanding of clause 7.6, this understanding also underpinned the approach to bargaining in respect of the camping allowance taken by the AWU. That context provides some objective understanding of the context and the purpose of the camping allowance and gives meaning to the concept of “camping out” in clause 7.6 of the Agreement.
[40] We are satisfied that the Senior Deputy President was correct in finding that the camping allowance is not automatically applicable when an employee is accommodated outside of the named locations but arises when the employee is accommodated at a lesser standard than at the named locations. The “novel criteria” to which the Appellants referred were criteria utilised by Senior Deputy President O’Callaghan in applying that interpretation to the circumstances of Mr Flanegan in his second decision.
[41] The Appellants also submitted that “Senior Deputy President fell into error in disregarding the locational considerations, which are clearly relevant to a proper reading of clause 7.6”. They submitted that a “proper reading of clause 7.6 would have informed the finding that where an employee is camped out at locations other than those specified in the clause, then an allowance would be payable”. Senior Deputy President fell into error, in interpreting clause 7.6 in his first decision, in rejecting the proposition that that the “determinant for payment of the camping allowance is simply the employee’s location or absence from the nominated locations”. 48
[42] By this contention, the Appellants sought to challenge the approach to clause 7.6 determined by Senior Deputy President O’Callaghan in his first decision which found that camping out meant “accommodated in a lesser standard of accommodation than that which an employee would enjoy if able to return to, and be accommodated at the named locations”. Given our findings in relation to that conclusion, this appeal ground cannot be sustained.
[43] The Appellants also submitted that His Honour should have had proper regard to the evidence proffered, through the Appellants, by Messrs Fenney and Lamps in establishing a proper application of the clause. This appeal ground seeks to challenge both the first decision of Senior Deputy President O’Callaghan in which he determined the correct application of clause 7.6 of the Agreement and the application of the conclusion determined to the circumstances of Mr Flanegan in the second decision.
[44] Having determined the operation of clause 7.6 of the Agreement in his first decision, Senior Deputy President O’Callaghan was entitled not to admit the evidence of Messrs Fenney and Lamps in establishing a proper application of the clause 7.6 in the further proceedings which were for the purpose of applying the conclusion to the circumstances of Mr Flanegan. The Appellants (and the AMWU and AWU) 49 had every opportunity to put evidence relevant to the negotiation of the Agreement before the making of his first decision and chose not to do so. Senior Deputy President O’Callaghan was entitled not to admit new material relevant (known to the Appellants) to the issue he decided in his first decision in the further proceedings concerning the application of his approach to clause 7.6 to the circumstances of Mr Flanegan. We concur, in any case, that the evidence of Messrs Fenney and Lamps, together with the competing evidence of Mr Gosling, does not disclose a mutual intention of the parties to the Agreement as to the intended operation of clause 7.6.
Conclusion
[45] Whilst the appeal is brought against the second decision of Senior Deputy President O’Callaghan, the Appellants sought also to challenge the finding in relation to clause 7.6 in his first decision. We have found that Senior Deputy President O’Callaghan was correct in the approach to clause 7.6 he determined on the material before him and in its application to the circumstances of Mr Flanegan. The decision of Senior Deputy President O’Callaghan was in our view correct. In this circumstance and there being no public interest considerations apparent to us that would warrant the grant permission to appeal in the public interest, we refuse permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
L Dooley for the Construction, Forestry, Mining and Energy Union and R Flanegan
P Wheelahan of Counsel for Transfield Services (Australia) Pty Ltd.
Hearing details:
2015.
Melbourne via video to Adelaide:
January 15.
1 [2014] FWC 6498.
2 AE896719.
3 [2014] FWC 1713.
4 [2014] FWC 6498.
5 [2014] FWC 1713, at paras 5–8.
6 Transcript, at para 80.
7 Transcript, at para 80.
8 United Firefighters’ Union of Australia v Country Fire Authority[2013] FWCFB 8165.
9 Transcript, at para 101.
10 Appeal Book at p. 193; para 15.
11 [2014] FWC 1713, at para 5 and [2014] FWC 6498, at para 4.
12 Appeal Book at pp. 8–22.
13 Appeal Book at pp. 190–196.
14 Appeal Book at pp. 24–189.
15 Appeal Book at pp. 198–208.
16 [2014] FWC 1713, at paras 5–8.
17 Appeal Book at pp. 210–229.
18 Appeal Book at pp. 230–235.
19 Appeal Book at pp. 236–237.
20 Appeal Book at pp. 238–239.
21 [2014] FWC 1713, at paras 5–8.
22 [2014] FWC 1713, at paras 29–30.
23 [2014] FWC 1713, at para 31.
24 [2014] FWC 1713, at para 38.
25 [2014] FWC 1713, at para 42.
26 [2014] FWC 1713, at para 46.
27 [2014] FWC 1713, at paras 43–45.
28 [2014] FWC 1713, at para 47.
29 [2014] FWC 6498, at para 28.
30 [2014] FWC 6498, at paras 15–17.
31 [2014] FWC 6498, at paras 1–2
32 [2014] FWC 6498, at para 3.
33 [2014] FWC 6498, at para 28.
34 [2014] FWCFB 7447 at paras 5–7.
35 [2012] FWAFB 3994.
36 [2006] FCA 813.
37 [2005] HCA 10.
38 [2010] FWAFB 4801.
39 [2014] FWCFB 7447, at para 41.
40 Exhibit A1, at para 24.
41 [2014] FWC 1713, at para 31.
42 [2014] FWC 6498, at para 25.
43 Exhibit A1, at para 30.
44 [2014] FWC 1713, at para 42.
45 AG839974.
46 AC311527.
47 Respondent’s Outline of Submissions dated 18 October 2013, Attachment TS3 before Senior Deputy President O’Callaghan.
48 [2014] FWC 1713, at para 42.
49 Appeal Book at pp. 393, 403–404.
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