CPSU, the Community and Public Sector Union v Water Corporation
[2015] FWCFB 3270
•26 MAY 2015
| [2015] FWCFB 3270 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Water Corporation
(C2015/1099)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 26 MAY 2015 |
Appeal against decision [2014] FWCA 8513 of Commissioner Williams at Perth on 28 November 2014 in matter number AG2014/9764 - extension of time for lodgement of appeal - agreement approval - requirement for notice to be lodged by an organisation seeking to be covered by an agreement.
[1] This decision deals with an appeal, made by the Community and Public Sector Union (the CPSU), for which permission is required, against a decision [2014] FWCA 8513 made by Williams, C on 28 November 2014. In that decision the Commissioner approved the Water Corporation Enterprise Agreement 2014 (the Agreement).
[2] On 17 February 2015 we issued directions relative to the provision of written submissions in this matter. Those directions required that the parties provide advice by 24 February 2015 if a hearing was requested. The times for the provision of written submissions were extended at the request of the parties. Written material has been provided by the parties. In its submissions of 10 April 2015 the Water Corporation requested a hearing on the appeal. The CPSU supported this request. Consequently, the matter was the subject of a hearing on 14 May 2015 in Perth. In this hearing Ms Boey appeared for the CPSU and Mr Ellery, of counsel, for the Water Corporation. Permission to the effect was granted pursuant to s.596(2)(a) on the basis that we were satisfied that it would enable more efficient consideration of the matter.
[3] The appeal was lodged on 7 January 2015, some 19 days outside of the 21 day time limit specified in Rule 56(2) of the Fair Work Commission Rules 2013. The CPSU sought an extension of that time limit pursuant to Rule 56(2)(c).
[4] The approach to extensions of time relative to appeals was succinctly summarised in Tokoda v Westpac Banking Corporation 1 in the following terms:
“[3] Time limits of the kind in Rule 12 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal's discretion under Rule 12.3(b):
[5] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favor an extension of the time within which to lodge the appeal.”
[6] We have adopted this approach. Before considering the extension of time sought in this matter we have briefly set out the circumstances which led to the appeal.
[7] The CPSU, together with various other employee bargaining representatives, was involved in the negotiation of the Agreement. The Agreement was made on 21 October 2014 and the Water Corporation lodged the approval application on 3 November 2014. A number of notices were subsequently lodged by various unions seeking to be covered by the Agreement.
[8] On 18 November 2014 the CPSU forwarded its notice in this respect (the Form F18) to the Water Corporation. We note that the CPSU contends that it understood that the Water Corporation had agreed to lodge this form with the approval application.
[9] Commissioner Williams approved the Agreement 2 on 28 November 2014. His approval decision named the various unions for whom he had received the F18 notices as organisations covered by the Agreement pursuant to s.183 of the Fair Work Act 2009 (the FW Act) and noted, in accordance with s.201(2) that the Agreement covered these organisations. Significantly, it did not name the CPSU. It is acknowledged that the Form F18 notice for the CPSU was not lodged in the Fair Work Commission (the FWC) before the Agreement was approved.
[10] On 8 December 2014 the CPSU wrote an email to Commissioner Williams in the following terms:
“...
I refer to the above matter AG 2014/9764 Water Corporation EA 2014, over which you presided.
Your decision of 28 November 2014 at [2] – [6] lists employee organisations that applied under s185 to be covered by the agreement.
The Community and Public Sector Union (WA) (CPSU) also expressed to the employer our intention to be covered by the agreement.
At the request of the employer we sent a form 18 to the employer on 18 November 2014 for inclusion in the employer’s application. This was our practice with previous agreements. It was our understanding the employer would append our form 18 to their application. Unfortunately this did not occur; the employer was under the apprehension we had also lodged the form 18 with the FWC and were merely completing the service requirements. The nett result is our form 18 application was not lodged in the required time frame. I apologise for this oversight.
I write to request the FWC allow the CPSU to be covered by the agreement and seek your advice as to how to achieve this end?
I attach the form 18 and the relevant email to the Water Corporation for your attention.
It is my understanding the Water Corporation will support this request. The relevant officer is Mr Jos Mensink, Chair of the Water Corporation EA Negotiation team.
Thanking you in anticipation.
...”
[11] On 9 December 2014 the Commissioner’s Associate replied in the following terms:
“...
Unfortunately the requirement under section 183(2) of the Fair Work Act 2009 (the Act) is for such notification to “...be given to the FWC,...before the FWC approves the agreement” which has not happened in this case. In addition section 603(3) of the Act provided the Commission must not vary or revoke decision including agreement approval decisions.
In the circumstances Commissioner Williams advises that he cannot resolve your problem.
...”
[12] There then followed various communications between the CPSU and the Water Corporation. These addressed, amongst other matters, the possibility of an agreed variation to the Agreement. The Water Corporation refused to agree to such a variation on 18 December 2014.
[13] The CPSU advised that, as a consequence of officer leave and the Appellant’s general office close-down arrangements, and its consideration of the issues involved, the appeal was not lodged until 7 January 2015.
[14] We are not satisfied that the material before us establishes a satisfactory reason for the late lodgement of the appeal has been made out or that a basis upon which an extension of time, should be granted. We have set out the reasons for our conclusion below.
[15] In the context of the 21 day time limit the delay is significant.
[16] An appeal under s.604 of the FW Act is an appeal by way of a rehearing on the basis that the Commission’s powers on appeal may only be exercised if there is error on the part of the primary decision maker. 3 Further, there is no right to appeal as an appeal can only be made with the permission of the Commission. Consequently, for the appeal to be successful we would need to be satisfied that the Commissioner’s decision reflected error of an appealable nature. It is in this context that we have considered the likelihood that the appeal could be successful.
[17] The grounds upon which the Commissioner’s decision is appealed were set out in the appeal notice in somewhat unusual terms. The CPSU contended that a ground for the appeal was that s.603(3) of the FW Act meant that the only means of now addressing the coverage issue was this appeal. While this may explain why the appeal was made, we do not regard it as a ground upon which an appeal can be logically based. Secondly, the CPSU assert that a ground for the appeal is representative error. In this respect it refers to its understanding of the actions of the Water Corporation. We do not understand that this “ground” refers to the actions of the Commission or an allegation of error on the part of the Commission. The CPSU asserts that the Commission would have known that a notice for another union was submitted by the Water Corporation and asserts that the Commission would also have been aware that the CPSU was a bargaining representative so that it should have made inquiries of the CPSU before approving the Agreement.
[18] We have reviewed these grounds in the context of the submissions put to us and have summarised the basis upon which we understand that the appeal is now pursued. The CPSU asserts that the Commissioner erred in not using the discretionary powers in s.590 of the FW Act to inquire into why the CPSU had not submitted a Form F18. This ground for the appeal goes to the approval decision. Secondly, we have taken it that the CPSU asserts that the Commissioner’s advice of 9 December 2014 incorporated error. This advice referred to s.603(3) and concluded that the Commissioner could not resolve the issue. The CPSU assert that s.602 provided the jurisdiction for the Commissioner to correct or amend his decision so as to name the CPSU as an organisation covered by the Agreement and that he was in error in not doing so.
[19] The CPSU submission is that this matter gives rise to the necessary public interest considerations in that substantial injustice would result if leave to appeal was not granted. Further, that the appeal raised important issues relative to these circumstances and that the failure to have the CPSU named as an organisation covered by the Agreement in these circumstances was counterintuitive.
[20] We have noted that the CPSU has filed affidavits in support of the appeal and has sought that these be taken into account in this matter.
[21] The Water Corporation has opposed the extension of time sought on the basis that no exceptional circumstances or persuasive explanation of the delay has been provided. The Water Corporation’s position is that the appeal does not give rise to the necessary public interest grounds and that no reasonably arguable grounds of appeal have been identified. In terms of s.590, the Water Corporation argues that this is simply a “machinery” provision and that:
“The Commission’s obligation in matters of this type is limited to noting under s201(2) that the agreement covers an organisation, where that organisation has given notice under s183(1).” 4
[22] In terms of s.602 the Water Corporation accepted that the capacity to correct or amend any obvious error, defect or irregularity was not fettered by s.603(3) and that, to this extent the advice of 9 December 2014 was in error. However, the Water Corporation argued that the use of s.602 in these circumstances was inappropriate in that there was no Form F18 notice before the Commissioner before the decision was approved such that the prerequisite requirements of ss.183 and 201 were met.
[23] We note that the Water Corporation also provided an affidavit made out by the officer involved in this matter and sought that we should have regard to this.
[24] We have concluded that there is no basis upon which the appeal could be successful for the following reasons.
[25] An organisation is entitled to be covered by an agreement in specified circumstances. Section 183 of the FW Act states:
“(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.
…”
[26] In approving an agreement the Commission is required to note that a notice pursuant to s.183 has been given. This section states:
“...
Note: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).”
[27] Section 590 of the FW Act provides the Commission with broad powers in relation to the manner in which it can undertake its functions. This section states:
“(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).”
[28] There may be many circumstances where the Commission utilises these broad powers in relation to an agreement approval application. In this respect a Commission Member may make an inquiry of a union to establish if it intends to lodge a notice seeking to be covered by an agreement. There is, however no obligation to do so and there can be no error associated with not taking that action. Indeed, were that to be read into the obligations on the Commission it would substantially complicate and delay the agreement approval process in a manner inconsistent with the objects of Part 2-4 of the FW Act which are set out in s.171 in the following terms:
“The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) makingbargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”
[29] Compliance with the obligations in s.183 is clearly the responsibility of the organisation seeking to be covered by the agreement. We note that there are many instances where organisations who have been employee bargaining representatives elect not to seek to be covered by the agreement that has been reached.
[30] Accordingly, no error is apparent in this circumstance as, at the time the Commissioner approved the Agreement, the CPSU had not lodged a notice seeking to be covered by it and there was no requirement that he pursue such a notice.
[31] In terms of the second basis for the CPSU appeal we do not agree that the Commissioner’s advice of 9 December 2014 should be construed as limiting the operation of s.602. This section states:
“(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).
Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).
Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.
(2) The FWC may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.”
[32] We agree with the following observations made by a Full Bench of the Commission in RotoMetrics Australia Pty Ltd T/A RotoMetrics v AMWU: 5
“[31] In the circumstances of the agreement approval decision by Commissioner Blair, the inclusion of the s.201 note appears to have reflected a presumption of regularity by the Commissioner as to the meeting of the Service Requirements in Form F22. Where, as in this case, the factual circumstances, as agreed between the parties to the appeal, were that the written notice was not served on the employer before approval of the Agreement, the inclusion of the s.201 note was in error and the decision of Commissioner Blair would not have included the s.201 note if he had been aware of the failure of the AMWU to provide a copy of the Form F22 to RotoMetrics prior to the approval of the Agreement. In our view, that error might have been capable of correction under s.602 of the Act. In this regard, we note that s.602 has been utilised to correct errors in relation to the failure to include a s.201 note in an agreement approval decision when, as has occasionally occurred, a Form F22 has been received within Fair Work Australia shortly before approval but has not made its way to the relevant Member before approval occurs, leading the Member to approve an agreement without including a s.201 note on the basis of the information available to them at the time of publishing a decision approving an agreement.
[32] We would note, however, that given the need to exercise caution in utilising s.602 of the Act to correct an obvious error, it would be necessary for a Member to afford affected persons with an opportunity to be heard in relation to correcting an error via s.602 and, in particular, to address the appropriateness of the use of the “slip rule” in the circumstances of the particular matter, having regard to relevant authority.”
[33] In this instance there was no obvious defect, error or irregularity. In fact, had the Commissioner utilised s.602 so as to name the CPSU as an organisation covered by the Agreement in the circumstances before him, we think he would have been acting outside of the jurisdiction available to him. Simply put, at the time that the Commissioner approved the Agreement there was no notice from the CPSU consistent with s.183(2) and hence there was no power to include the note to that effect pursuant to s.201(2) of the FW Act.
[34] To the extent that the CPSU relies on allegations of representative error on the part of the Water Corporation we have not found it necessary to consider the affidavits the parties have provided to us. In our view the provisions of s.183(1) are clear in that the obligation is on the organisation seeking to be named as a party to provide the relevant notice to the Commission and to the employer. This obligation is clearly confirmed in the content of the Form F18 itself. There is no error on the part of the Commission associated with a failure of the CPSU to meet this obligation.
[35] In these circumstances we are not satisfied that the appeal meets the necessary public interest considerations or that any error of an appealable nature has been established. The interests of justice do not warrant an extension of time.
[36] Because of the conclusions we have reached relative to the reasons for the delay and the nature of the appeal itself, we are not prepared to extend time for lodgement of the appeal and dismiss the appeal accordingly.
Appearances:
K Boey for the Appellant.
N Ellery counsel for the Respondent.
Hearing details:
2015.
Perth:
May 14
1 [2012] FWAFB 3995
2 [2014] FWCA 8513
3 See Coal & Allied v AIRC (2000) 203 CLR 194
4 Water Corporation submission of 10 April 2015
5 [2011] FWAFB 7214
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