Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Limited
[2016] FWCFB 6783
•20 SEPTEMBER 2016
| [2016] FWCFB 6783 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Port Kembla Coal Terminal Limited
(C2016/4478)
VICE PRESIDENT HATCHER | SYDNEY, 20 SEPTEMBER 2016 |
Appeal against decision [2016] FWC 3852 of Vice President Watson at Melbourne on 23 June 2016 in matter number C2016/3037.
[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 20 September 2016.
[2] The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an appeal, for which permission is required, against a decision of Vice President Watson issued on 23 June 2016 1 (Decision). The Decision concerned a dispute between the CFMEU and Port Kembla Coal Terminal Limited (PKCT) about whether PKCT was required, under clause 7 of the Port Kembla Coal Terminal Limited Enterprise Agreement 2012-20152(Agreement), to commence consultation with the CFMEU and any affected employees in relation to a proposal under development to de-man PKCT’s rail shed (Proposal). The conclusion in the Decision was that the obligation to consult under clause 7 had not yet arisen because, on the facts, the Proposal was not yet at the stage where it could be characterised as being under consideration by PKCT. That conclusion was reached on the basis that under clause 7.1 the obligation to consult did not arise until “the Company is considering introducing a major change to production, program, organisation, structure, technology, shift arrangements, work organisation or the level of outsourcing in relation to its enterprise; and ... the change, if implemented, is likely to have a detrimental or significant effect on employees.” The CFMEU contends that the Decision was attended by appealable errors of fact and law.
[3] We have decided to refuse the CFMEU permission to appeal for two reasons:
(1) It is an agreed fact that, as at the date of the hearing of the appeal, PKCT has commenced engaging in consultation with the CFMEU and relevant employees in relation to the Proposal. The application lodged by the CFMEU pursuant to s.739 of the Fair Work Act 2009 which initiated the proceedings identified, as the relief it would ultimately seek in an arbitration of the dispute, that PKCT be required to consult with the CFMEU and relevant employees in relation to the Proposal. The practical position therefore is that, irrespective of the outcome arrived at in the Decision, the CFMEU has with the passage of time and the progress of events obtained the relief which it originally sought. The appeal could therefore not lead to the CFMEU gaining any better practical outcome than that which it has already obtained. The appeal therefore lacks utility.
(2) Insofar as the CFMEU submits that permission to appeal should be granted because the Decision expresses a general view about the proper interpretation of clause 7 of the Agreement which might be relied upon by PKCT in future disputes, we consider that the concern upon which that submission is based is misplaced. Firstly, the Decision under appeal was primarily concerned with the particular factual circumstances extant at the relevant time, not with advancing a general interpretation of the Agreement. In that connection, we note that Vice President Watson was careful during the hearing to inform the parties that he did not intend to “draw the line” in relation to when consultation was required in a general sense, but merely to determine which side of the line the particular facts fell. 3 Secondly and more significantly, after the Decision was issued the Federal Court Full Court decision in Port Kembla Coal Terminal Ltd v CFMEU4was delivered on 5 August 2016. In that decision the Full Court engaged in the interpretation of clause 7 of the Agreement and expressed conclusions which must necessarily in any future dispute about clause 7 be regarded as authoritative. While there may be room for debate about the precise gravamen of the Full Court’s decision, there can be no doubt it has overtaken the Decision under appeal. It may also be noted that the Agreement has passed its nominal expiry date and the parties are negotiating a new agreement, so there is no guarantee that clause 7 will be retained in its current form. Indeed those negotiations may represent an opportunity for the parties to clarify the drafting of clause 7 in any future agreement should it be retained.
[4] Permission to appeal is refused. If any further difficulty arises in respect of the dispute, the parties may seek a re-listing of the matter before Vice President Watson.
VICE PRESIDENT
Appearances:
A. Walkaden for Construction, Forestry, Mining and Energy Union.
B. Rauf of counsel and A. Linton solicitor for Port Kembla Coal Terminal Limited.
Hearing details:
2016.
Sydney:
20 September.
1 [2016] FWC 3852
2 AE893080
3 Transcript 14 June 2016 at PNs 36-44
4 [2016] FCAFC 99
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