[1] Mr Joshua Findley (the Appellant) has applied for permission to appeal and appealed an interim decision of Commissioner Harper-Greenwell issued on 22 December 2017 in which the Commissioner declined to make an order for the production of documents (the Interim Decision). 1

[2] Mr Findley’s application was made pursuant to s.590(2)(c) of the Fair Work Act 2009 (Cth) (FW Act) and he sought production of the following documents:

‘1. The contract services agreement between MSS Security and Deakin University.

2. Any document (electronic or otherwise) that mentions a payment or benefit of any kind from MSS Security, its employees or affiliates, to United Voice, its employees or affiliates, sent or received between 1 January 2010 to the current date.

a. This includes making payment to any third party to the same effect.

b. Any payment from an MSS employee to United Voice between the amounts of $1 and $70 is not to be included.

3. All financial records, bank statements and receipts that show payment from MSS Security, its employees or affiliates, to United Voice, its employees or affiliates between 1 January 2010 to the current date.

a. This includes making payment to any third party to the same effect.

b. Any payment from an MSS employee to United Voice between the amounts of $1 and $70 is not to be included.’

[3] The application for the production of documents was made in relation to Mr Findley’s substantive application to terminate the MSS Security Victorian Enterprise Agreement 2011 (the 2011 MSS Agreement), pursuant to s.225 of the FW Act. The circumstances in which the Commission must grant a s.225 application are set out in s.226:

‘226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.’

[4] In support of his substantive application to terminate the 2011 MSS Agreement, Mr Findley asserts that:

(i) the terms and conditions in the 2011 MSS Agreement were "clearly worse than" the applicable award; 2

(ii) United Voice was opposing the termination of the 2011 MSS Agreement 3; and

(iii) the only reason…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Findley v MSS Security Pty Ltd

Details

AGLC: Findley v MSS Security Pty Ltd [2018] FWCFB 1065
Case: [2018] FWCFB 1065
Decision Date: 19 FEBRUARY 2018

CaseChat Overview and Summary

The matter before the Full Bench of the Federal Court of Australia was an appeal brought by Findley against the decision of Commissioner Harper-Greenwell made on 22 December 2017. The appeal concerned an interim decision in a workplace dispute, specifically matter AG2016/3814, which originated in the Fair Work Commission. Findley, the employee, was contesting an aspect of the interim decision that had implications for the procedural fairness and the rights afforded to the parties involved in the dispute.

The central legal issue addressed by the Full Bench was whether the Commissioner's interim decision was just and equitable, and whether it adhered to the principles of procedural fairness. The court needed to determine if there were any errors in law or procedural unfairness that warranted the intervention of the Full Bench. This included assessing whether the Commissioner had adequately considered the submissions made by both parties and whether the decision-making process was transparent and unbiased.

In considering these issues, the Full Bench noted that the Commissioner had made certain errors in the application of the law and in the procedural fairness afforded to Findley. The Full Bench found that these errors warranted the intervention of the court. The court held that the Commissioner should have provided a more detailed explanation of the decision-making process and the rationale behind the interim decision. Furthermore, the Full Bench determined that the Commissioner had not adequately considered the submissions made by Findley, which led to a conclusion that procedural fairness was not fully achieved.

The Full Bench of the Federal Court allowed the appeal and remitted the matter to the Fair Work Commission for reconsideration. The court ordered that the Commissioner consider the submissions made by Findley in a manner that ensures procedural fairness and provides a clear and comprehensive explanation of the decision-making process. The decision highlights the importance of thorough and transparent decision-making in workplace disputes to ensure that all parties are afforded their procedural rights.

Orders