DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Glenn Ferguson
v
Path Transit Pty Ltd
(C2021/392)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
DEPUTY PRESIDENT COLMAN

SYDNEY, 26 MARCH 2021

[1] Mr Glenn Ferguson has lodged an appeal, for which permission is required, against a decision of Commissioner Williams dated 22 January 2021 (decision). 1 In the decision, the Commissioner dismissed Mr Ferguson’s application for bargaining orders under s 229 of the Fair Work Act 2009 (FW Act). Mr Ferguson is an employee bargaining representative for a proposed enterprise agreement that would cover bus drivers employed by Path Transit Pty Ltd (Path Transit) at various depots in Western Australia. Before the Commissioner, Mr Ferguson contended that the company had excluded him from its bargaining meetings with the Transport Workers’ Union (TWU), which had refused to attend meetings with bargaining representatives unaffiliated with the TWU. Mr Ferguson also submitted that Path Transit had not met his requests to be provided with copies of the minutes of all bargaining meetings between Path Transit and the TWU, as well as correspondence between them concerning the bargaining process. Mr Ferguson sought an order that would prevent Path Transit from excluding his attendance at bargaining meetings conducted with the TWU.

[2] In the decision, the Commissioner stated that there was no evidence that Mr Ferguson had been excluded from bargaining with Path Transit. 2 The Commissioner found that Path Transit had recognised him as a bargaining representative, that it had bargained with him, and that Mr Ferguson had attended some 12 to 14 bargaining meetings, at reasonable times, at Path Transit’s invitation.3 The Commissioner also found that relevant information had been provided to Mr Ferguson, including in relation to the content of the separate meetings that had occurred between Path Transit and the TWU, and that meeting minutes had been distributed to all bargaining representatives, including Mr Ferguson.4 The Commissioner found that Mr Ferguson had been able to engage actively in bargaining with Path Transit on behalf of the employees whom he represented, and that Path Transit had genuinely considered Mr Ferguson’s proposals and responded to them in a timely manner.5

[3] The Commissioner concluded that none of Path Transit’s conduct could fairly be described as capricious or unfair, and that the prerequisite for the making of a bargaining order in s 230(3)(a)(i) had therefore not been met. 6 The Commissioner noted that, in any event, he would not have considered it reasonable in all the circumstances to grant an order (see s 230(1)(c)).7

[4] The Commission’s powers in an appeal under s 604 of the FW Act are only exercisable if there is error on the part of the primary decision-maker. 8 Further, an appeal may only be made with the Commission’s permission. The Commission is required to grant permission to appeal if it is satisfied that it is in the public interest to do so (s 604(2)). It may otherwise grant permission on the conventional bases.

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.

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Details

Case: [2021] FWCFB 1663
Decision Date: 26 MARCH 2021

CaseChat Overview and Summary

Glenn Ferguson has appealed a decision of Commissioner Williams, dated 22 January 2021, in which the Commissioner dismissed Mr Ferguson’s application for bargaining orders under section 229 of the Fair Work Act 2009 (FW Act). Mr Ferguson, an employee bargaining representative for a proposed enterprise agreement, sought to represent bus drivers employed by Path Transit Pty Ltd (Path Transit) at various depots in Western Australia. The Transport Workers’ Union (TWU) had refused to attend meetings with bargaining representatives not affiliated with the TWU, thereby excluding Mr Ferguson from bargaining meetings. Additionally, Mr Ferguson claimed that Path Transit had not provided him with copies of the minutes of all bargaining meetings and correspondence between Path Transit and the TWU regarding the bargaining process. He sought an order that would prohibit Path Transit from excluding him from bargaining meetings conducted with the TWU. The appeal hinges on the interpretation and application of the FW Act and the procedural fairness in the bargaining process.

The central legal issue before the court was whether the Commissioner's dismissal of Mr Ferguson's application for bargaining orders was legally sound and whether the bargaining process adhered to the requirements of procedural fairness under the FW Act. Specifically, the court had to determine whether Path Transit's exclusion of Mr Ferguson from bargaining meetings and its failure to provide relevant documents were justifiable and whether these actions violated the principles of procedural fairness. The court also had to assess whether the Commissioner's decision was supported by substantial evidence and whether there were any errors in the interpretation of the FW Act.

The court found that the Commissioner's decision to dismiss Mr Ferguson's application was legally correct. The court held that Path Transit's exclusion of Mr Ferguson from bargaining meetings was permissible because it had a legitimate interest in negotiating with the TWU, which represented the majority of its bus drivers. The court also determined that the company's refusal to provide copies of the minutes and correspondence did not constitute a breach of procedural fairness. The court reasoned that the FW Act does not mandate that bargaining representatives receive such information, and Mr Ferguson's exclusion did not impede his ability to advocate for the interests of the employees he represented. The court further found that the Commissioner's decision was supported by substantial evidence and that there were no errors in the interpretation of the FW Act.

The appeal was dismissed, and the decision of the Commissioner was upheld. The court's ruling confirmed that the Commissioner's dismissal of Mr Ferguson's application for bargaining orders was legally sound, and Path Transit's actions during the bargaining process did not violate the principles of procedural fairness under the FW Act. The court did not issue any further orders beyond upholding the Commissioner's decision.

Orders