Donnybrook Holdings Pty Ltd t/a TES Electrical v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2021] FWC 207

[2021] FWC 207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Donnybrook Holdings Pty Ltd t/a TES Electrical
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2021/158)

VICE PRESIDENT HATCHER SYDNEY, 15 JANUARY 2021

Appeal against decision [2020] FWC 5520 of Deputy President Beaumont at Perth on 21 December 2020 in matter number B2020/400 – application for stay order

[1] Donnybrook Holdings Pty Ltd, which trades under the name of TES Electrical (TES), has lodged an appeal against a decision 1 and order2 of Deputy President Beaumont issued on 21 December 2020. The decision concerned an application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under s 236 of the Fair Work Act 2009 (FW Act) for a majority support determination in respect of TES’s employees in its commercial construction “banner”. The Deputy President determined in the decision that she would grant the application, finding in relation to the main issues in contest that the group of employees that would be covered by the agreement proposed by the CEPU was fairly chosen and that it would be reasonable in all the circumstances to make the determination.

[2] There are two grounds of appeal stated in TES’s notice of appeal. The first (formulated in two alternative ways) is, in substance, that the decision was manifestly unreasonable in that the Deputy President in the exercise of her discretion failed to consider, or properly consider, whether it was reasonable in all the circumstances to make the determination in accordance with s 237(2)(d) of the FW Act. This appeal ground is supported by particulars that contend that the Deputy President placed excessive reliance on certain matters, failed to take any or sufficient account of certain matters, and failed to adequately consider the unreasonable or unjust result which would follow from the determination. The second appeal ground is that the Deputy President erred in finding that the group of employees that would be covered by the proposed agreement was fairly chosen in accordance with s 237(2)(c) on the basis of being organisationally distinct within the meaning of s 237(3A) of the FW Act. This is likewise supported by particulars to the effect that the Deputy President failed to consider or properly consider various matters pertaining to the way in which TES organised its business, failed to consider the fairness or otherwise of the outcome in respect of TES’s employees excluded from the proposed coverage, and failed to take into account the objects of the FW Act in paragraphs (a), (e) and (f) of s 3.

[3] The notice of appeal contends that permission to appeal should be granted in the public interest on the following grounds:

(A) it is for the Commission to ensure that any decisions are not affected by error, and that any error that has occurred is corrected;

(B) the decision concerns matters of general public importance in respect to the correct interpretation of the factors to be considered in exercising a discretion under s 237(2)(c), s 237(3A) and s 237(2)(d) of the FW Act regarding majority support determinations;

(C) there is a dearth of authoritative decisions on the range of matters relevant to the Commission’s exercise of discretion under s 237(2)(d) of the FW Act; and

(D) there is a dearth of authoritative decisions considering what weight is to be attributed to the various objects set out in the FW Act when deciding whether to make a majority support determination under Part 2-4, Division 8, subdivision C of the FW Act.

[4] The notice of appeal also seeks a stay of the determination made by the Deputy President in the following terms:

“The Appellant seeks an order that, pending the hearing and determination of the appeal, the determination made by the Commission on 21 December 2020 in matter B 2020 of 400 be stayed, on the grounds that:

A. the appellant has an arguable case with reasonable prospects of success, both in respect of the grant of permission to appeal and the merits of the appeal;

B. the determination takes effect from 21 December 2020 such that the requirements for good faith bargaining commence as of that date;

C. the company and its electrical employees who would not be covered by the proposed enterprise agreement would be prejudiced if negotiations began prior to the decision from this appeal being handed down; and

D. the balance of convenience favours the grant of the stay in that any bargaining for an agreement should not commence until such time after the proceedings have concluded. E. Any appeal overturning the Commission’s decision would render the majority support determination nugatory.”

[5] This decision is concerned with TES’s application for a stay order.

[6] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 3 Paragraph [5] of that decision states: 

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[7] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 4 

[8] I have had the benefit of limited oral submissions in relation to the grounds of appeal. It is clear that the consideration required by s 237(2)(c) and (d) requires the making of an evaluative judgment in order to reach the requisite state of satisfaction. In an appeal from a decision made pursuant to s 237 in which it is contended that there is error in respect of the conclusion reached as to s 237(2)(c) and/or (d), the discretionary appeal standard will apply – that is, it will be necessary for an error of the House v The King 5type to be demonstrated. Considered in this context, it cannot be said that the grounds of appeal, and their supporting particulars, disclose a strong case. Appeal grounds which contend, in substance, that particular matters were given insufficient weight or inadequate consideration are unlikely to ultimately prove persuasive.

[9] However, I am prepared to find, on my very preliminary consideration of the matter, that the first appeal ground is arguable. The Deputy President’s consideration pursuant to s 237(2)(d) of the FW Act as to whether it was reasonable in all the circumstances for the majority support determination to be made in paragraphs [80]-[81] of the decision was, on one view, perfunctory, did not involve a proper consideration of the matters raised by TES in this respect and, insofar as the Deputy President relied on her earlier findings made pursuant to s 237(3A) concerning organisational distinctiveness, did not take into account all the relevant circumstances. An error of that nature, if found, might also arguably provide a proper basis for the grant of permission to appeal.

[10] This is not to be taken, of course, as a conclusion that the first appeal ground should succeed. There is clearly available a strong alternative argument that, read in the context of the decision as a whole and the earlier findings made, the Deputy President appropriately reached a state of satisfaction that it was reasonable in all the circumstances of relevance that the majority support determination should be made.

[11] In respect of the balance of convenience, I advised the parties that the appeal would be heard in the week beginning Monday 22 March 2021. TES submitted that the balance of convenience favoured the preservation of the status quo during this relatively short period. It submitted that it would suffer prejudice if a stay was not granted because:

(1) it would encounter some difficulty as to who it should conduct bargaining with, since there is some cross-over of employees between the commercial construction “banner” and the other commercial building maintenance section not covered by the majority support determination; and

(2) TES would have to make administrative arrangements to prepare for bargaining in good faith with the employees covered by the determination.

[12] I do not consider that the balance of convenience positively weighs in favour of the grant of a stay order. An invocation of the need to preserve the “status quo” without more is insufficient to justify the grant of a stay order. In truth, the “status quo” is that a majority support determination is in operation, and the mere filing of an appeal against the making of that determination does not entitle the appellant to be returned to the pre-existing situation by the making of a stay order. The grant of a stay would prejudice the CEPU and the employees it represents because it would deprive them of the capacity to engage with TES in good faith bargaining with the objective of obtaining a beneficial enterprise agreement. If the appeal is ultimately unsuccessful, the grant of a stay will in all likelihood delay the prospect of that objective being achieved. This weighs against the grant of a stay.

[13] TES has not, in my view, demonstrated any countervailing prejudice which would tip the balance of convenience the other way. The proposition that it would have some difficulty in precisely identifying who to bargain with is contrary to the finding made by the Deputy President in paragraph [76] of the decision that it is possible to identify who is in what division at any point in time. In any event, as the CEPU pointed out, TES is not bound by the scope of the majority support determination and could, if it wished, issue notices of employee representational rights to and bargain with the wider group of employees in both divisions. Alternatively, if the scope of the determination causes bargaining to proceed inefficiently or unfairly, TES could apply for a scope order under s 238 of the FW Act. Additionally, I do not accept that the need for TES to undertake some preparatory work in order to undertake bargaining in good faith constitutes a matter which would cause the balance of convenience to weigh in its favour. I also note that it was not suggested by TES that there was any realistic possibility that protected industrial action might be taken before the hearing and determination of the appeal.

[14] For the above reasons, the application for a stay is dismissed.

VICE PRESIDENT

Appearances:

Ms M Saraceni (Counsel) on behalf of the Appellant.
Ms A Heffernan on behalf of the Respondent.

Hearing details:

2021.

Sydney (via telephone).
15 January.

Printed by authority of the Commonwealth Government Printer

<PR726208>

 1   [2020] FWC 5520

 2   PR725670

 3   [2000] AIRC 785, Print S2639

 4   Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 5 [1936] HCA 40, 55 CLR 499