Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking v Transport Workers' Union of Australia
[2017] FWCFB 4636
•14 SEPTEMBER 2017
| [2017] FWCFB 4636 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.603 – Varying and revoking the FWC’s decisions
v
Transport Workers’ Union of Australia
(C2017/1406)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 SEPTEMBER 2017 |
Varying and revoking the FWC’s decisions – s.603 of the Fair Work Act 2009 (Cth).
[1] On 8 June 2017, we issued a Decision 1 in relation to appeal against Deputy President Bull.2 At the outset of the hearing on 19 May 2017, the parties made it known to us that permission to appeal was not required.3 However, due to an oversight on the Full Bench’s behalf, the issue of permission to appeal was dealt with in the Decision and, ultimately, permission to appeal was refused.
[2] On 15 August 2017, we received correspondence from the Transport Workers’ Union of Australia (“the Respondent”), notifying us that Glen Cameron Trucking (“the Appellant”) had commenced proceedings in the Federal Court with respect to our Decision on the basis that we erred on a jurisdictional basis by failing to grant permission to appeal, which was a right conferred on the parties pursuant to clause 21 of the Glen Cameron Nominees Pty Ltd NSW EBA 2015-2019 (“the Agreement”). The Respondent requested that the appeal proceedings be relisted to permit the parties to address the Commission in relation to this matter.
[3] As a result of this, we sent correspondence to the parties on 16 August 2017, noting that the Federal Court may quash and remit the matter back to the Full Bench as presently constituted. Alternatively, we noted the Appellant could withdraw its appeal in the Federal Court and we could revoke our Decision under section 603 of the Fair Work Act 2009 (Cth) (“the Act”) on the basis that we were aware permission to appeal was not required. In this regard, we noted we could then re-determine the appeal on the papers, or if the parties agreed, following further oral submissions.
[4] We subsequently listed the matter for mention on 21 August 2017 to allow the parties to address the Commission in relation to the above issue pursuant the Respondent’s request in their correspondence dated 15 August 2017. During the mention, the Appellant submitted that we did not have power to revoke our Decision, whilst the Respondent contended that we did have such power. We indicated that we were minded to revoke the Decision, however, enquired with the parties if they wished to be heard separately in relation to the issue of revocation. As the Appellant requested the matter be dealt with on the papers, we sent Directions to the parties on 21 August 2017 requiring the parties to file and serve submissions.
[5] On 22 August 2017, the Appellant lodged an interlocutory application with the Federal Court, seeking an injunction to restrain us from taking any further steps in the above proceedings. On 30 August 2017, Perram J handed down a judgment 4 dismissing the Appellant’s application for an interlocutory injunction.
[6] Having received the submissions of the parties, we now turn to consider whether we have jurisdiction to revoke our Decision of 8 June 2017.
Submissions
Appellant’s submissions dated 24 August 2017
[7] The Appellant’s submissions can be summarised into three main grounds.
[8] First, the Appellant submitted that any power to revoke the Decision is excluded by the terms of the dispute procedure.
[9] The Appellant contended that the essential feature of private arbitration is finality and that the general rule is that the award of an arbitrator is final and conclusive. 5 As such, the Appellant submitted it is doubtful whether there is room for an assumption of the kind discussed in DP World Brisbane Pty Ltd v The Maritime Union of Australia6 (“DP World”). That is, that the Commission is armed with the full suite of powers except insofar as the power is excluded by the parties’ agreement – in so far as the section 603(1) revocation power is concerned.
[10] The Appellant asserted that it is not necessary for the purposes of this case to determine whether the analysis in DP World applies to section 603(1) of the Act, or whether the analysis is correct generally. The Appellant posited that this is so because the terms of the dispute procedure are inconsistent with the existence of such a power. The Appellant contended that, as the Full Bench observed in DP World at [53], it is for the parties to establish the features of the dispute procedure in an agreement and it is within the parties’ remit to exclude some or all of the powers exercisable by the Commission. That is, the plain effect of section 739 of the Act limits the Commission’s powers in two ways:
1. In dealing with a dispute, the Commission must not exercise any powers limited by the relevant dispute procedure; and
2. The Commission must not make a decision that is inconsistent with a fair work instrument that applies to the parties.
[11] In this regard, the Appellant noted the dispute procedure pursuant to which the Full Bench acted provided that:
“The parties agree that the decision of the FWC is binding subject to a right of appeal to a Full Bench of the FWC. The decision of the Full Bench shall be final.”
[12] In relation to the above dispute procedure, the Appellant submitted that two relevant features may be observed. First, it provides in clear terms that the decision of the Full Bench is final. That language does not admit the possibility that the decision of the Full Bench, having been made, might be revisited at will. Second, and to the extent that any doubt might possibly remain on the issue, it is dispelled by the reference to “the decision” of the Full Bench. That language makes clear that there will be a single decision of the Full Bench, not a series of decisions. Thus, the Appellant asserted that it follows that the Full Bench has no power to revoke the Decision pursuant to section 603(1) of the Act, or otherwise.
[13] Second, the Appellant contended that any power which does not exist is not capable of being properly exercised in the circumstances.
[14] The Appellant submitted that the revocation power is, on its face, unconfined and it does not follow that it may be exercised in any circumstances. In this regard, the Appellant asserted that the principle of finality and the need for certainty demand that the power be exercised only in exceptional circumstances. The Appellant posited that the circumstances in which the power may be properly exercised were outlined by Ross J in Grabovsky v United Protestant Association of NSW Ltd T/A UPA 7(“Grabovsky”):
“[37] It is apparent from its terms and the legislative context that s.603(1) is intended to be broader than a statutory form of the slip rule. So much is clear from s.602, which is directed at slip rule problems. The question is how broad the power is and in what circumstances should it be exercised?
[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.
[15] In this respect, the Appellant submitted it has not been suggested by any party that there has been a change in circumstances, nor that the Decision was based on incomplete or false information. There is therefore no apparent basis for the exercise of any revocation power which might exist.
[16] Third, the Appellant contended that a reasonable apprehension of bias arises by virtue of the following matters:
1. The Full Bench indicated during proceedings on 21 August 2017 that it was minded to revoke the Decision;
2. The comments of the Full Bench during the appearance on 21 August 2017 suggest that it regards the Appellant’s resistance of the proposal to revoke as being improper. The comments suggest that the Full Bench has a concluded view that revocation is appropriate and that opposition to revocation is inappropriate; and
3. The Full Bench has imposed upon the parties, and particularly the Appellant, an unreasonably short timeframe to file submissions in relation to a novel and difficult issue. The source of the urgency was and is unexplained. The remarkably short timetable suggests that revocation is fait accompli and that the Appellant has no real opportunity to influence the Full Bench.
[17] For the above reasons, the Appellant contended the Full Bench, if satisfied that the section 603(1) revocation power potentially exists in the present case, should remit the matter to the President for allocation to a differently constituted Full Bench for the purposes of determining whether the Decision should be revoked.
Respondent’s submissions dated 5 September 2017
[18] The Respondent referred to each of the Appellant’s submissions, which we summarise as follows.
[19] In relation to the first ground, the Respondent contended that in DP World, it was made clear that, when parties confer jurisdiction upon the Commission to resolve a dispute through a dispute resolution procedure in an enterprise agreement, the parties will take the Commission as they find it and, absent contrary intent, the usual powers and procedures of the Commission will apply. In particular, the Respondent had regard to [47] and [48] of DP World, which it asserted was approved by the Full Federal Court in AMWU v ALS Industrial Australia Pty Ltd 8 (“ALS”). In this regard, the Respondent asserted that, in the absence of express statement to the contrary, the Full Court considered at [57] that the Commission’s appellate functions and powers are able to be exercised in a matter arising under a dispute resolution process in an enterprise agreement. The same principle would be applied with respect to other powers ordinarily possessed by the Commission in relation to proceedings before it.
[20] The Respondent submitted that the Commission is able to correct or amend any obvious error, defector irregularity (whether in substance or form) in relation to a decision under section 602 of the Act or to vary or revoke a decision under section 603 of the Act. The Respondent noted the Appellant’s contention that the terms of the dispute procedure are inconsistent with the exercise of a power to revoke a decision. However, the Respondent asserted this submission should not be accepted for two main reasons.
[21] First, the reference to the Decision being “final” is clearly intended to convey that the parties are committed to accepting the Commission’s decision and that resolving the dispute will be binding on the parties. In this regard, the Respondent posited that there is no reason to infer an intention on the part of the drafters of the enterprise agreement to constrain the exercise of the Commission’s own powers to correct, vary or revoke its decisions.
[22] Second, the Appellant contended that the reference to “thedecision” of the Full Bench cannot be construed to suggest that the Commission’s usual discretion as to how and in what manner it makes decisions or as to correcting decisions is intended to be curtailed. Nor is it to be inferred that the Commission could only publish a single decision.
[23] In the alternative, the Respondent submitted that, even if the Commission did not have power to vary or revoke its decision under sections 602 or 603 of the Act, it is nonetheless able to and, indeed, obliged to make a further decision to resolve the appeal. The Respondent contended this is so because, if, consistent with the approach advanced by the parties, the Full Bench concludes that a right of appeal exists under clause 21 and permission was not required, then it has not completed its function of determining the appeal. For the above reasons, the Respondent posited that the Commission should vary or revoke its Decision under sections 602 or 602 of the Act or, in any event, proceed to make a further decision finalising the appeal.
[24] In relation to the second ground, the Respondent submitted that, in Grabovsky, Ross J was not purporting to and did not set out rules as to the exercise of the discretion conferred by section 603. In this regard, the Respondent asserted that the passage relied upon by the Appellant at [38] of Grabovsky does no more than set out some circumstances which, in the past, have resulted in the variation or revocation of a decision. The Respondent subsequently posited that Ross J goes on to indicate that, as a general proposition, the power would not be used to re-litigate the original case.
[25] In relation to the third ground, the Respondent contended that the relevant test is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the relevant adjudication and determination. 9 First, the Respondent submitted that the fact that the Full Bench indicated it was minded to revoke its decision does not lead to a reasonable apprehension of bias, as it is an expression of a preliminary view. Second, the Respondent noted that the reference to the comment that it is not “a game about trying to outplay”10 was evidently a reference to the timetable appropriate for the making of further submissions and cannot be understood as alleging impropriety in the Appellant’s position. Third, the Respondent posited that the timetable set by the Full Bench did not establish any reasonable apprehension of bias and was rejected by the Federal Court in relation to the Appellant’s application for an interlocutory injunction.11
Appellant’s submissions in reply dated 8 September 2017
[26] The Appellant contended the existence of a right of appeal is not inconsistent with the concept of private arbitration. Further, that the existence of a right of revocation is wholly inconsistent with the concept of private arbitration as finality is the essence of arbitration. 12 In this regard, the Appellant submitted that, absent clear language, it would not be presumed that parties intended to abandon a fundamental aspect of arbitration by authorising revocation at will. The reasoning in DP World is in that sense is inapt to the present question.
[27] The Appellant noted the Respondent’s submission that the requirement that the decision of the Full Bench be “final” is not inconsistent with a power to revoke. In this respect, the Appellant asserted that it would immediately be noted that the effect of the Respondent’s submission is to read “final” as meaning “binding”. The Appellant posited such a contention could not be accepted for at least two reasons. First, the parties chose the word “final” in contradistinction to “binding”. A construction which neutralises that choice and assumes the parties intended to use different words to import identical meaning would not readily be accepted. Second, “final” simply does not mean “binding”. A decision might well be “binding” without being “final”. Thus, the Appellant contended that the existence of a section 603 power of revocation is inconsistent with finality.
[28] The Appellant also noted the Respondent’s submission that:
“A situation in which the Commission may have misapprehended the manner in which the parties approached a matter or the submissions advanced by the parties is an appropriate circumstance for the exercise of the Commission’s powers under either ss 602 or 603 of the Act.”
[29] The Appellant asserted no authority is cited for this proposition and, to the Appellant’s knowledge, there is no case in the Commission where a decision has been revoked on the basis that the Commission misapprehended the submissions advanced by the parties. As such, the Appellant posited that a capacity to revoke on that basis would offend the principle of finality by inviting applications to re-litigate proceedings on the basis that the Commission “misapprehended” a submission.
[30] The Appellant submitted that the Full Bench invited the parties to make submissions in relation to the question of whether it has jurisdiction, pursuant to section 603 of the Act, to revoke the Decision. It did not invite submissions at large, nor did it invite submissions into the question of whether the arbitration should be “completed” or the decision corrected pursuant to the slip rule. In this regard, the Appellant asserted that the Respondent’s suggestion that the Full Bench may revoke or “or, in any event, make a further decision finalising the appeal” is unclear. The Appellant submitted that the appeal decision disposed of the proceeding by refusing permission to appeal and the position is quite unlike DP World where a Full Bench quashed a first instance unfair dismissal decision, but failed to take the further step of disposing of the unfair dismissal application itself. In that case, as the Federal Court concluded, the task of the Full Bench remained unfinished. The Appellant contended that is not the position here.
[31]Finally, the Appellant posited that it appears from the Respondent’s submissions at [15]-[16] that the Respondent might be diffidently suggesting that the Decision is a nullity, such that no revocation is required. In this respect, the Appellant submitted that, if the Respondent wishes to advance a third case premised on invalidity, having first suggested correction pursuant to the slip rule and then secondly embraced the revocation option, it should do so explicitly and should confront the consequences of that view. It should not be permitted to ambiguously raise the issue by way of passing mention in submissions directed to a different question.
Consideration
[32] Section 603 of the Act states as follows:
“Varying and revoking the FWC’s decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).
(2) The FWC may vary or revoke a decision under this section:
(a) on its own initiative; or
(b) on application by:
(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations--a person prescribed by the regulations in relation to that kind of decision.
(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:
(a) a decision under Part 2-3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);
(c) a decision under Part 2-5 (which deals with workplace determinations);
(d) a decision under Part 2-6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.
Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).
[33] We note it was not contended by either party that any of the categories under section 603(3) applied to the matter before us in deciding whether we have jurisdiction to revoke our Decision.
[34] The relevant extract from clause 21 of the Agreement is as follows:
“The parties shall attempt to resolve the matter by conciliation at first instance. Where conciliation as (sic) failed to resolve the dispute either party may choose to seek the assistance of the FWC in resolving the dispute by further conciliation of (sic) arbitration of the dispute. The parties agree that the decision of the FWC is binding subject to a right of appeal to a Full Bench of the FWC. The decision of the Full Bench shall be final.”
[35] We note the Appellant’s submission that any power to revoke our Decision is excluded by the terms of the dispute procedure as clause 21 renders the Commission’s decision as “final”. We do not agree with this submission.
[36] In DP World, the Full Bench held:
“[47] As a matter of general principle when jurisdiction is conferred on an established court or tribunal it may be assumed that the legislature intended to take the court as it finds it, with all its incidents including any liability to appeal. This presumption is clearly stated by the High Court in Electric Light & Power Supply Corp Ltd v Electricity Commission (NSW) …
[48] The above proposition also applies to tribunals. When the parties to an enterprise agreement choose to confer a power of private arbitration on the Commission then, absent any contrary intention, they take the Commission as they find it, including the liability to appeal. On appeal the Commission exercises a power of private arbitration conferred by the implied agreement of the parties (s 739(4)). Such a conclusion is also consistent with Full Bench authority.”
[37] The above passage was approved in ALS, where the Full Federal Court held at [57]:
“We have previously suggested that there is much in the proposition that parties who choose to go to arbitration with FWC take that body as they find it. Such choice will be made with knowledge of the structure of that body and of the appellate function performed by the Full Bench. The reference of a dispute for resolution by FWC is for resolution by that body, and not by one part of it. It follows that if the parties intend that there be no appeal pursuant to s 604, they should say so. Similarly, if it is intended that any appeal be other than by way of private arbitration, the parties should say so.”
[38] In the absence of express statement to the contrary, the Full Court considered that the Commission’s appellate functions and powers are able to be exercised in a matter arising under a dispute resolution process in an enterprise agreement. In our view, the same principle would be applied with respect to other powers ordinarily possessed by the Commission in relation to proceedings before it.
[39] That is, we do not agree that the reference to a decision made pursuant to clause 21 of the Agreement as being “final” renders the Commission unable to utilise the powers bestowed upon it under section 603 of the Act. The most applicable definition of the word “final” in the context of clause 21 of the Agreement is defined in the Oxford Dictionary as “allowing no further dispute or doubt”. There is nothing to suggest that such finality somehow precludes the Commission from revoking a decision in order to resolve a dispute. Nor does section 603 stipulate that the Commission cannot utilise its power to revoke a decision issued in conjunction with private arbitration.
[40] We note the Appellant’s reliance, in particular, on [38] of Grabovsky where Ross J held:
“[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.”
[41] In this respect, the Appellant submitted it has not been suggested by any party that there has been a change in circumstances, nor that the Decision was based on incomplete or false information. Thus, there is no apparent basis for the exercise of any revocation power which might exist. We do not agree with this submission. The above extract relied upon by the Appellant merely outlines circumstances where the power to vary or revoke a decision has generally been exercised. Ross J was not purporting to and did not set out rules as to the exercise of the discretion conferred by section 603. Thus, this submission must be rejected.
[42] We also note the Appellant’s assertion that a reasonable apprehension of bias arises by virtue of the following matters:
“First, the Full Bench indicated during proceedings on 21 August 2017 that it is minded to revoke the Decision.
Second, the comments of the Full Bench during the appearance on 21 August 2017 suggest that it regards Camerons’ resistance of the proposal to revoke as being improper. The comments suggest that the Full Bench has a concluded view that revocation is appropriate and that opposition to revocation is inappropriate.
Third, the Full Bench has imposed upon the parties and particularly Camerons an unreasonably short timeframe to file submissions in relation to a novel and difficult issue. The source of the urgency was and is unexplained. The remarkably short timetable suggests that revocation is fait accompli and that Camerons has no real opportunity to influence the Full Bench.”
[43] We note that the assertion there is a reasonable apprehension of bias in relation to the presently constituted Full Bench is a very serious allegation. The relevant test is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the relevant adjudication and determination. 13 In this regard, an allegation of apprehended bias must be “firmly established”.14
[44] In relation to the first contention, the fact that we made an observation that we were “minded” to revoke the Decision does not satisfy the test for reasonable apprehension of bias. In Minister for Immigration and Multicultural Affairs v Jia, 15 Gleeson CJ and Gummow J held:
“Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.” 16
[45] Having regard to the above extract, the reference to us being “minded” to revoke our Decision was no more than a predisposition. There was nothing to suggest that we could not be persuaded from this preliminary view. This is corroborated by the fact that we invited the parties to make submissions in relation to the issue of revocation. Accordingly, we reject this assertion.
[46] In relation to the second contention, we take this as referring to Vice President Catanzariti’s comment that the issue before the Full Bench was “not a game about trying to outplay.” 17 The comment made by the Vice President simply referred to setting an appropriate timetable for the making of further submissions. There was no suggestion that the Appellant’s position regarding the issue of revocation was somehow improper or inappropriate. As such, this submission must be rejected.
[47] In relation to the third contention, again, this does not satisfy the test for reasonable apprehension of bias. This was supported by Perram J in the Federal Court who held:
“I do not think that I could say that a timetable of the kind imposed by the Full Bench occasioned procedural unfairness to Glen Cameron Nominees, or that it adds any substantive flavour to the contention that the Full Bench had engaged in conduct which would give rise to a reasonable apprehension of bias.” 18
[48] Noting the above, we are not satisfied that the Commission is rendered unable to exercise its power to revoke a decision as a result of clause 21 of the Agreement, nor Ross J’s observations made in Grabovsky.
[49] Thus, as clause 21 of the Agreement conferred a right of appeal and our Decision refused permission to appeal, we are of the view that our Decision did not resolve the dispute and, therefore, a further decision must be issued to rectify this matter and bring the dispute to finality.
Conclusion
[50] The Decision ([2017] FWCFB 2907) is hereby revoked pursuant to section 603 of the Act.
[51] As the Decision is revoked, the appeal will now be determined to finality. We note the parties have had a full hearing on the merits of the appeal. However, the matter will be relisted before Commissioner Johns for further directions in order to ascertain whether the parties seek to file further submissions; require a further hearing; or if the appeal is to be determined on the papers.
VICE PRESIDENT
Hearing details:
Matter determined on the papers by consent.
Final written submissions:
Appellant’s submissions dated 24 August 2017.
Respondent’s submissions dated 5 September 2017.
Appellant’s submissions dated 8 September 2017.
1 [2017] FWCFB 2907.
2 [2017] FWC 911.
3 Transcript dated 19 May 2017, PN7.
4 [2017] FCA 1026.
5 TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 [77]–[81].
6 [2013] FWCFB 8557.
7 [2015] FWC 5161.
8 (2015) 235 FCR 305, [49]-[50].
9 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[8].
10 Transcript dated 21 August 2017, PN34.
11 [2017] FCA 1026, [14].
12 See for example Goode v Bechtel (1904) 2 CLR 121 at 126; Linfox Australia Pty Ltd v Transport Workers Union of Australia [2013] 213 FCR 479, [33] and [38]; and TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) 251 CLR 533, [37], [77]–[78], [81]–[82].
13 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]-[8].
14 Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, 359-360 and 371-372.
15 (2001) 205 CLR 507.
16 (2001) 205 CLR 507, 531 [71].
17 Transcript dated 21 August 2017, PN34.
18 Glen Cameron Nominees Pty Ltd v Transport Workers’ Union of Australia [2017] FCA 1026, [14].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR595882>
6
12
0