DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Glenn Ferguson
v
Path Transit Pty Ltd
(C2020/7004, C2020/7475)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMISSIONER LEE

SYDNEY, 9 DECEMBER 2020

Appeal against decision [2020] FWCA 4277 of Deputy President Beaumont at Perth on 24 August 2020 in matter number AG2020/1728, and decision [2020] FWCA 4768 of Deputy President Beaumont at Perth on 15 September 2020 in matter number AG2020/1728

Introduction and background

[1] Glenn Ferguson has lodged two appeals against decisions made by Deputy President Beaumont in relation to an application made by Path Transit Pty Ltd for approval of the Path Transit Pty Ltd Bus Drivers Enterprise Agreement 2019 – Morley (Agreement). Permission to appeal is required in respect of both of Mr Ferguson’s appeals. Mr Ferguson’s appeal in matter C2020/7004 (first appeal) concerns a decision made by the Deputy President on 24 August 2020 1 (first decision) in which Mr Ferguson’s three grounds of objection to approval of the Agreement were rejected. Mr Ferguson’s appeal in matter C2020/7475 (second appeal) concerns the decision issued by the Deputy President on 15 September 20202 (second decision) in which she approved the Agreement on the basis of the acceptance of a number of undertakings. Mr Ferguson contends that the decisions were subject to error in a number of respects, and seeks that they be quashed.

[2] The background of the matter may be explained briefly. Path Transit Pty Ltd (the company) is a private passenger transportation business located in Western Australia. It sought to negotiate an enterprise agreement pursuant to the provisions of the Fair Work Act 2009 (FW Act) to cover the bus drivers it employed in the Morley and Bayswater areas in the Perth metropolitan area to provide public bus services under contract with the government of Western Australia. The “notification time” for the Agreement was 2 September 2019, when the company issued the notice of employee representational rights. There were a number of employee bargaining representatives in the bargaining which followed, which included the Transport Workers’ Union of Australia (TWU), Mr Ferguson, and some other individuals associated with Mr Ferguson. It appears that, at a bargaining meeting which occurred on or about 26 November 2019, the TWU representative announced that the TWU would not be “sitting in a room with others for these negotiations.” Thereafter the company bargained with the TWU separately from Mr Ferguson and the other individual bargaining representatives. However, this did not deny Mr Ferguson the opportunity to meet and bargain with the company, since he attended bargaining meetings on 5 December 2019, 12 December 2019, 27 February 2020, 5 March 2020 and 12 May 2020.

[3] On 17 January 2020, Mr Ferguson applied for bargaining orders pursuant to s 229 of the FW Act (bargaining application). In his application, Mr Ferguson alleged that the company, in meeting separately with the TWU, not providing the contact details of the other bargaining representatives and not…

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: [2020] FWCFB 6615
Decision Date: 9 DECEMBER 2020

CaseChat Overview and Summary

The appeal concerns a decision of Deputy President Beaumont in the Federal Circuit Court of Australia. Glenn Ferguson, the appellant, is contesting a decision against Path Transit Pty Ltd, the respondent. The dispute revolves around an application for review of a decision by the Fair Work Commission. The application was dismissed by Deputy President Beaumont on 24 August 2020, and a subsequent application for review of that decision was also dismissed on 15 September 2020. Both decisions are being appealed to the Federal Court.

The central legal issue before the court was whether the decisions made by Deputy President Beaumont were legally sound and correctly applied the relevant statutory provisions. Specifically, the court had to consider if there were errors in law that resulted in an unjust outcome for the appellant. The appeal sought to establish whether the Deputy President correctly interpreted and applied the applicable laws and if there were any procedural irregularities that impacted the fairness of the decisions.

The court considered the submissions made by both parties and reviewed the relevant statutory framework. The appeal was dismissed by the Federal Court, which found that Deputy President Beaumont correctly interpreted and applied the law. The court held that there were no errors in law or procedural irregularities that warranted a different outcome. The Federal Court found that the decisions of the Deputy President were well-reasoned and consistent with the applicable legal principles.

The Federal Court dismissed the appeal, affirming the decisions of Deputy President Beaumont. The court held that the Deputy President's interpretation and application of the law were correct, and there were no grounds for overturning the original decisions. As a result, the appeal was unsuccessful, and the original decisions stand.

Orders