Glenn Ferguson v Path Transit Pty Ltd
[2020] FWCFB 6615
•9 DECEMBER 2020
| [2020] FWCFB 6615 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Glenn Ferguson
v
Path Transit Pty Ltd
(C2020/7004, C2020/7475)
VICE PRESIDENT HATCHER | 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 providing the other bargaining representatives with the minutes of its meetings with the TWU, had not met the good faith bargaining requirements in s 228 of the FW Act. Mr Ferguson sought orders requiring the company to invite all bargaining representatives to attend each bargaining session that it arranged, and that the company and all other bargaining representatives provide him with their contact details and copies of all correspondence passing between them. Mr Ferguson’s bargaining application was allocated to Commissioner Williams, and the Commissioner subsequently conducted a conference in relation to the application on 5 February 2020.
[4] On 26 May 2020, the relevant employees of the company were advised in accordance with s 180(3) of the FW Act that a vote upon a proposed agreement would occur on 3-4 June 2020. A majority of voting employees voted in favour of the proposed agreement, and accordingly the Agreement was made on 4 June 2020. On 18 June 2020, the company lodged its application for approval of the Agreement. The company advised the Commissioner in writing on 8 June 2020 that the Agreement had been made and that an application for its approval would be lodged and, on 23 June 2020, the Commissioner decided to adjourn further dealing with the bargaining application pending the determination of the application for approval of the Agreement. 3
[5] In the proceedings before the Deputy President, the TWU supported the approval of the Agreement but Mr Ferguson opposed it. Mr Ferguson’s three grounds of opposition were as follows:
(1) The attempt by the company to have the Agreement approved before the bargaining application was determined constituted an abuse of process. All bargaining had to be conducted in good faith and completed before an application to the Commission for approval of an enterprise agreement could be made.
(2) Clause 11.9(b) of the Agreement, which empowered the company to require on 4 weeks’ notice that employees take 75% of their accrued annual leave entitlement in excess of four weeks or take leave without pay where “service kilometres are reduced by at least fifteen (15)%”.
(3) The insertion of clause 11.9(b) of the Agreement came about outside of good faith bargaining obligations.
[6] Mr Ferguson sought that the Deputy President adjourn the application for approval of the Agreement until the bargaining application had been determined.
First decision
[7] In the first decision, the Deputy President rejected the three grounds of objection advanced by Mr Ferguson. In relation to the first ground, the Deputy President noted that when the bargaining application had come before the Commissioner, “the parties were agreeable to convening a private conference with a view to furthering negotiations and resolving issues”, and that if Mr Ferguson was dissatisfied with the outcome of that discussion and considered that the company’s conduct remained contrary to s 228, he could have requested that the matter be brought back on. 4 The Deputy President further observed5 that once those employees whom he represented were notified of that ballot, Mr Ferguson might have but did not seek a bargaining order deferring the conduct of the vote on the proposed agreement in accordance with the principles stated in NUW v CHEP Australia Pty Ltd.6
[8] The Deputy President determined that in any event, now that the Agreement had been made and there was no further bargaining to be had, Mr Ferguson’s first ground was moot, and the Commission was required under s 186(1) of the FW Act to approve the Agreement if the requirements in ss 186 and 187 were met. 7 The Deputy President also noted that there was no contention before her that the Agreement was not genuinely agreed as required by s 186(2)(a), and that she was satisfied that it was genuinely agreed.8
[9] In relation to Mr Ferguson’s third ground of objection, the Deputy President found that it was without merit because the bargaining representatives, including Mr Ferguson, had been informed of the proposed clause 11.9(b) about 10 days prior to the vote and invited to comment upon it, and that it was uncontroversial that it was not a good faith bargaining requirement that there be agreement or concessions made about a claim or proposal. 9
[10] In relation to the second ground of objection, the Deputy President rejected Mr Ferguson’s contention that the content of clause 11.9(b) was detrimental to employees when compared to the NES because it excluded or permitted the avoidance of the NES redundancy pay entitlement in s 119 of the FW Act. The Deputy President said:
“[42] Having considered the submissions, evidence and the operation of cl 11.9(b), cl 21, cl 22 and cl 4.4, I am satisfied that cl 11.9(b) does not contravene s 55 of the Act. In the event that it does, I am nevertheless satisfied that cl 4.4 operates in such a manner so as to address the issue, and therefore approval of the Agreement is not precluded.”
[11] The Deputy President finally noted that the company had provided written undertakings in response to other issues that had been raised in relation to the approval of the Agreement, and that the views of the bargaining representatives regarding these undertakings would now be sought. 10
[12] Mr Ferguson lodged the first appeal on 15 September 2020, prior to the second decision being issued later that day.
Second decision
[13] In the second decision, the Deputy President took into account the matters raised by Mr Ferguson in response to the company’s written undertakings, determined to accept the undertakings, and on that basis expressed her satisfaction that the requirements of ss 186, 187, 188 and 190 of the FW Act as were relevant to the application for approval of the Agreement had been met. The Agreement was approved on the date of the decision and, in accordance with s 54 of the FW Act, operated from 22 September 2020.
[14] The second appeal was lodged on 6 October 2020.
Mr Ferguson’s appeal grounds and submissions
[15] The notice of appeal in Mr Ferguson’s first appeal specified four grounds of appeal, which may be summarised as follows:
(1) The first decision “overlooked or failed to adequately address or consider” Mr Ferguson’s objection that clause 11.9(b) of the Agreement could operate as a de facto redundancy measure because it allowed employees to be stood down without pay indefinitely, and thus would be detrimental to employees compared to the NES redundancy entitlements.
(2) The first decision was based on incorrect conclusions about the progress of Mr Ferguson’s bargaining application. The statement in paragraph [24] of the first decision that the parties were agreeable to holding a private conference with a view to further negotiations and resolving issues was not correct and not based on any information before the Commission. Mr Ferguson’s legal representative was also prevented from giving submissions about the background of the bargaining application.
(3) The first decision permitted an abuse of process and a denial of procedural fairness, given that the application for approval of the Agreement was made whilst the bargaining application was yet to be determined. The first decision, if permitted to stand, would disentitle a party seeking bargaining orders from being heard by the Commission.
(4) The effect of the first decision is to render the requirements in Pt 2-4 of the FW Act relating to bargaining processes, in particular s 171(a) and (b)(i) and (ii) redundant.
[16] Mr Ferguson contends in his notice of appeal that permission to appeal should be granted because, in summary, the case raised important questions about the rights and obligations of employees and employers in relation to ensuring and maintaining the legitimacy of the bargaining processes contemplated by the FW Act, and if the first decision was allowed to stand it would, contrary to the public interest, empower employers to seek the approval of agreements without first having adhered to the bargaining processes contemplated by Pt 2-4 of the FW Act.
[17] Mr Ferguson’s notice of appeal for the second appeal contains a single appeal ground, namely that the second decision, which approved the Agreement, was published after Mr Ferguson had lodged the first appeal and provided a copy of the notice of appeal to the Deputy President’s chambers, in circumstances where Mr Ferguson had sought a stay of the approval of the Agreement in his first appeal. Mr Ferguson contends in his notice of appeal that permission to appeal should be granted on the same grounds as in the first appeal.
[18] Mr Ferguson’s written and oral submissions departed somewhat from his grounds of appeal. He raised the additional or re-formulated contentions of error:
• the Deputy President failed to consider whether the approval requirement in s 187(2) was met or, alternatively, implicitly and erroneously considered that it was met;
• the Deputy President could not reach the requisite state of satisfaction under s 187(2) because the company had acted inconsistently with and undermined good faith bargaining;
• clause 11.9(b) of the Agreement contravened s 55 of the FW Act because it was inconsistent with the redundancy pay entitlements in s 119, notwithstanding clause 4.4 of the Agreement;
• the approval of the Agreement including clause 11.9(b) would allow employees to be stood down indefinitely without pay, and would cause them to suffer a loss of income, an inability to pay their mortgage, access Centrelink payments and obtain food and other necessities, and to suffer a loss in employment security which would be damaging to an employee’s mental health and wellbeing;
• the Deputy President’s incorrect statement concerning the state of affairs in relation to the bargaining application implied that the company had actively participated in resolving the dispute regarding the impugned bargaining process, and was made in the context of the Deputy President’s refusal to take into account Mr Ferguson’s assertions that the bargaining process was flawed and so as a consequence was any application for approval of the Agreement; and
• the Deputy President’s approval of the Agreement after her chambers was provided with the notice of appeal in the first appeal seeking to stay any prospective approval of the Agreement was ultra vires.
Consideration
[19] At the outset, it is necessary to observe that the first appeal was filed 22 days after the first decision, and thus was filed outside the 21-day time period allowed for appeals by rule 56(2) of the Fair Work Commission Rules 2013. The appeal is therefore incompetent unless an extension of time is granted under rule 56(2)(c). Mr Ferguson has not advanced any reason for his lateness in filing the appeal beyond contending that his legal representative made an error in calculating the 21 days. This does not explain why the filing of the appeal was left until what was thought to be the last day. However, the issue of the lateness of the filing of the first appeal does not matter all that much because, as the second decision was the final and operative decision in the matter, Mr Ferguson is entitled in his second appeal (which was filed within time) to challenge any interlocutory decision which affected the final decision. 11 This plainly includes the first decision. The two appeals were heard together, and accordingly the arguments for both appeals were advanced in a conjoined manner. Accordingly, we consider that the most convenient course is to refuse to allow an extension of time in relation to the first appeal, but to consider all the matters raised in both appeals in the context of the second appeal.
[20] We do not consider that any of the matters raised by Mr Ferguson have sufficient merit to justify the grant of permission to appeal. First, his contention that the Deputy President’s determination of the application for approval of the Agreement involved an abuse of process and a denial of procedural fairness, because it preceded and thereby precluded the determination of the bargaining application, is misconceived. Once the employees voted their approval on 4 June 2020, the Agreement was “made” in accordance with s 182(1). There was then an obligation upon the company (as its own bargaining representative) under s 185 to apply for approval of the Agreement within 14 days. Once the application for approval of the Agreement was made, bargaining was concluded, 12 so that the grant of bargaining orders would be futile. It is an object of Pt 2-4 of the FW Act, which contains the scheme of the Act concerning enterprise bargaining, that applications for approval of enterprise agreements “are dealt with without delay” (s 171(b)(iii)). Under s 186(1) of the FW Act, the Deputy President was obliged to approve the Agreement if the requirements of that section and s 187 were met.13 Accordingly, there was no proper basis for the application for approval of the Agreement to be adjourned pending the determination of the bargaining application, which had become moot (as the Deputy President found).
[21] Second, because the bargaining application had become moot by the time the Deputy President gave consideration to the application for approval of the Agreement, it was irrelevant whether there had in fact been a private conference in relation to the bargaining application at some earlier time, as stated in paragraph [24] of the first decision. Any factual error in this respect could not affect the outcome of the application for approval of the Agreement. It should also be noted that the Deputy President did not actually say that such a private conference had occurred, but only that the parties were agreeable to it occurring.
[22] Third, Mr Ferguson did not identify any proper statutory basis for his contention that the Agreement should not have been approved on the basis of an alleged failure on the part of the company to bargain in good faith. Mr Ferguson relied upon s 187(2), which provides:
(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.
[23] However, s 187(2) applies only where there is a scope order in place, as its text, the Explanatory Memorandum 14 and the Full Bench decision in Philmac Pty Ltd15make clear. There was no scope order made in this case, so s 187(2) had no application. Mr Ferguson did not contend before the Deputy President that the Agreement was not genuinely agreed to by the employees who were covered by it, as required by s 186(2)(a), nor did he appeal the Deputy President’s finding that this approval requirement was satisfied.
[24] Fourth, there is no basis to conclude that the terms of the Agreement contravened s 55 of the FW Act, contrary to the approval requirement in s 186(2)(c). However, clause 11.9(b) of the Agreement might be construed, it operates subject to clause 4.4 of the Agreement, which provides:
4.4 The NES shall apply to this Agreement. In accordance with section 61 of the FW Act, where the NES is more beneficial to an Employee the NES will prevail over this Agreement to the extent that the NES provides a more favourable outcome to the Employee.
[25] Clause 4.4 ensures that an employee to whom the Agreement applies cannot receive, by virtue of any other provision of the Agreement, an “outcome” less favourable than that provided by the NES. 16 Accordingly, notwithstanding clause 11.9(b) (however construed), if an employee would under s 119 become entitled to redundancy pay, then clause 4.4 would operate to ensure that the employee receives it. That would encompass a situation whereby an employee who has been stood down without pay for an indefinite period might properly be characterised as having been constructively dismissed on the basis that their position has become redundant.
[26] Finally, the proposition that the lodgment of the first appeal rendered the delivery of the second decision ultra vires is completely without merit. The mere filing of an appeal does not operate to stay the decision under appeal or the continuation of the proceedings the subject of the appeal.
[27] Although it is not necessary for us to express any view as to whether there was any failure of the company to engage in good faith bargaining, given the conclusions we have stated above, we observe that the contention in this regard advanced by Mr Ferguson appears to us to be weak. Mr Ferguson was not excluded from bargaining with the company on behalf of the employees he represented since, as earlier explained, the company met with him and the other individual bargaining representatives with whom he was associated on a number of occasions. His complaint is that the company did not meet with him at the same time that it met with the TWU, but this did not deprive him of the opportunity to respond to the company’s proposed terms of agreement or to advance employees’ claims. Indeed, the material before us suggests that the company acceded to the representations made by Mr Ferguson in a number of respects. Mr Ferguson’s grievance appears in substance to be that he was deprived of the opportunity to negotiate his position with the TWU, but we cannot conceive why that should be regarded as an element of good faith bargaining falling within the requirements prescribed by s 228(1). In any event, we do not consider there is a reasonable basis to criticise the company for bargaining separately with the TWU and Mr Ferguson in circumstances where the TWU made it clear that it would not sit in the same room as Mr Ferguson.
Disposition of the appeals
[28] In relation to the first appeal, we decline to grant an extension of time to file the appeal, and the appeal is therefore dismissed as incompetent. In relation to the second appeal, we refuse permission to appeal.
VICE PRESIDENT
Appearances:
Mr M Lourey on behalf of the Appellant.
Ms M Hogan on behalf of the Respondent.
Hearing details:
2020.
Sydney (via video-link).
17 November.
Printed by authority of the Commonwealth Government Printer
<PR725268>
1 [2020] FWCA 4277
2 [2020] FWCA 4768
3 [2020] FWC 3289
4 [2020] FWCA 4277 at [24]
5 Ibid at [25]
6 [2009] FWA 202, 188 IR 134
7 [2020] FWCA 4277 at [27]-[28]
8 Ibid at [34]
9 Ibid at [35]-[36]
10 Ibid at [43]
11 Gerlach v Clifton Bricks Pty Limited [2002] HCA 22, 209 CLR 478; United Firefighters' Union of Australia v Country Fire Authority [2013] FWCFB 8165 at [19]
12 Uniline Australia Limited [2016] FWCFB 4969, 263 IR 255 at [115]
13 There was no suggestion that s 192 of the FW Act was applicable in this case.
14 Explanatory Memorandum for the Fair Work Bill 2008 at [788]-[789]
15 [2011] FWAFB 2668, 210 IR 3 at [4]
16 See RACV Road Service Pty Ltd v ASU[2015] FWCFB 8554 at [17]
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