Glenn Ferguson v Path Transit Pty Ltd
[2021] FWCFB 1663
•26 MARCH 2021
| [2021] FWCFB 1663 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Glenn Ferguson
v
Path Transit Pty Ltd
(C2021/392)
VICE PRESIDENT HATCHER | 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.
[5] Mr Ferguson’s notice of appeal advanced two grounds upon which he contended that the Commissioner’s decision was affected by error. The first contended that the Commissioner wrongly interpreted ss 228 to 233 of the FW Act, as well as other unspecified provisions of the FW Act. The second stated that the Commissioner failed to base his decision on the evidence. Neither ground is made out, and the appeal is devoid of merit, for the following reasons.
[6] As to the first ground of appeal, Mr Ferguson made no effort to explain how he believes the Commissioner wrongly interpreted ss 228 to 233, or any other provision of the FW Act, nor can we identify any interpretative error in the decision. Mr Ferguson said that there was no difference between the interpretation and the application of law. This is wrong. But to the extent that the first ground of appeal was intended to advance a contention that the Commission misapplied, rather than misinterpreted, the relevant provisions, Mr Ferguson failed to offer any argument to substantiate this proposition.
[7] As to the second ground of appeal, Mr Ferguson’s written submissions asserted that the decision was based on “incorrect conclusions as to the state of affairs”, and that these conclusions were reached in the absence of any supporting evidence or an explanation of how the conclusions were reached. Asked to identify the conclusions in question, and whether any error of fact was alleged, Mr Ferguson said that the Commissioner had failed to record in his findings that he had been excluded from meetings with Path Transit and the TWU. In our view, it is clear from the decision that the Commissioner was very much aware that Mr Ferguson had been invited to meetings that were separate from those conducted with the TWU. He concluded that none of Path Transit’s conduct had been unfair. This conclusion was plainly open to the Commissioner in light of his other findings, including in particular that Path Transit had bargained with Mr Ferguson. Moreover, we agree with it.
[8] Especially unmeritorious were Mr Ferguson’s submissions that the decision was “contrary to the intention of Parliament”, and that the decision’s effect was both to “render the requirements of Part 24 (sic) … redundant” and to undermine the object of Part 2-4 of the FW Act. These submissions do not speak to any error on the part of the Commissioner.
[9] Mr Ferguson’s central complaint was that Path Transit conducted meetings with him that were separate from those it conducted with the TWU. He said that conducting separate meetings meant that the process was not open and transparent, that it was open to manipulation, that it disenfranchised the employees who had appointed him as their bargaining representative, and that it was an improper strategy of the employer to appease a union that would not meet with him. There is no substance to any of these assertions. Conducting separate meetings did none of these things. Contrary to Mr Ferguson’s submissions, he was clearly not excluded from negotiations for a new enterprise agreement.
[10] This is now the second occasion on which Mr Ferguson has agitated his arguments about joint bargaining meetings before a Full Bench. 9 The Commissioner noted in the decision that the circumstances before him were very similar to those in a different round of bargaining between Path Transit and the TWU in 2020, which had led to the making of an enterprise agreement that was approved by the Commission on 15 September 2020. Mr Ferguson had requested that the Commission adjourn Path Transit’s application for approval of the agreement until it had considered his application for bargaining orders. The request was denied. A Full Bench of the Commission dismissed Mr Ferguson’s appeal from that decision. The Full Bench noted that the substance of Mr Ferguson’s grievance appeared to be that he was deprived of the opportunity to negotiate his position in the same meetings with the TWU, but that it could not conceive why that matter should be regarded as an element of good faith bargaining.10 We adopt these observations.
[11] A bargaining representative does not contravene the good faith bargaining requirements simply by conducting separate bargaining meetings with different bargaining representatives. Whether the requirements have been met depends on all of the circumstances. In the present case, Path Transit has engaged in meaningful negotiations with Mr Ferguson. Mr Ferguson was invited to meetings at reasonable times and was given information about what occurred at other meetings. There is simply no indication in the materials before us of any conduct contrary to the good faith bargaining requirements.
[12] Mr Ferguson’s appeal in the present matter does little more than register his disagreement with the Commissioner’s conclusion and invite the Full Bench to reach a different one. This is not a proper use of the appeal function in s 604 of the FW Act, particularly in circumstances where a central element of Mr Ferguson’s case has been rejected by a previous Full Bench. Let the shadow of the possibility of costs orders fall on those who persist in wasting the Commission’s time with spurious applications.
[13] There are no grounds upon which to grant permission to appeal, either in the public interest or otherwise. Mr Ferguson has not made out an arguable case of error, whether of fact or law. The Commissioner’s decision is not attended by doubt such as to warrant reconsideration. It does not manifest an injustice.
[14] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
M. Lourey for Mr Ferguson.
M. Hogan for Path Transit Pty Ltd.
Hearing details:
2021.
Sydney (by video-link).
24 March.
Printed by authority of the Commonwealth Government Printer
<PR728135>
1 [2021] FWC 211
2 Ibid at [48]
3 Ibid at [48]-[49]
4 Ibid at [50]
5 Ibid at [51]-[52]
6 Ibid at [53]-[54]
7 Ibid at [55]
8 See Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194 at [17]
9 See Glenn Ferguson v Path Transit Pty Ltd[2020] FWCFB 6615
10 Ibid at [27]
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