Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers' Union
[2016] FWCFB 3370
•26 MAY 2016
[2016] FWCFB 3370
The attached document replaces the document previously issued with the above code on 26 May 2016.
A typographical error has been corrected in the first sentence of paragraph [15].
Associate to Vice President Hatcher
31 May 2016
| [2016] FWCFB 3370 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
The Australian Institute of Marine and Power Engineers and
The Australian Maritime Officers' Union
(C2016/783)
VICE PRESIDENT HATCHER |
|
Appeal against decision [[2016] FWC 1637] of Commissioner Cambridge at Sydney on 16 March 2016 in matter number AG2015/6927.
Introduction and background
[1] Inco Ships Pty Ltd (Inco) has applied for permission to appeal against an interim decision of Commissioner Cambridge issued on 16 March 2016 1 (Decision) which arose from an application by Inco for the approval of the Inco Ships Pty Ltd Officer Collective Agreement 2015 Shipping Services (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Decision concerned whether any of the three unions, namely the Maritime Union of Australia (MUA), the Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers’ Union (AMOU), should be heard in relation to the approval of the Agreement. Each of the unions had sought to be heard on the basis that its respective eligibility rules permitted it to enrol as members employees who would be covered by the Agreement if approved. It is not in dispute that none of the unions was a bargaining representative in relation to the Agreement. The unions requested to be heard concerning whether the required pre-approval steps had been taken and whether the Agreement satisfied the better off overall test. Inco contended that none of the unions had a right to be heard.
[2] In the Decision, the Commissioner determined as follows:
“[26] In the particular circumstances of this matter, I have decided to grant standing for the AIMPE and the AMOU as interveners in the matter. Thus, the AIMPE and the AMOU shall be entitled to appear and be heard in respect to the proceedings. The AIMPE and the AMOU shall be provided with an opportunity to scrutinize the issues of concern which have been identified. An earnest examination of these issues would assist the Commission in the discharge of its statutory function.
[27] Given that the coverage of the Agreement specifically excludes classifications which have been historically represented by the MUA, I have determined that it would not be appropriate to provide standing to the MUA. Therefore, the request made by the MUA to be heard in the matter is refused.”
[3] Inco submitted that permission to appeal should be granted in the public interest for the following reasons:
(1) The Decision was inconsistent with the decision of the Commission in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd. 2
(2) The Decision applied wrong principles for the purpose of determining who should be heard and upon what basis when deciding whether the Agreement should be approved.
(3) The Decision granted the status of intervener to the unions and exceeded the jurisdiction of the Commission in relation to determining the status of persons seeking to be heard pursuant to s.590 of the FW Act in enterprise agreement approval proceedings.
(4) In describing the state of the law and decisions of the Commission as they concern standing of registered organisations at different stages of enterprise agreement approval proceedings is “untidy” the approach applied by the Commission was wrong in law.
(5) The application of consistent principles pursuant to the provisions of the FW Act to determine the status of persons seeking to be heard in enterprise agreement approval proceedings is manifestly in the public interest.
Consideration
[4] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.
[5] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 The public interest is not satisfied simply by the identification of error, or a preference for a different result.5 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 6
[6] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 7
[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 8 However, as earlier stated the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[8] In this case, we do not consider that permission to appeal should be granted either in the public interest or on discretionary grounds, for the following reasons.
[9] First, the appeal is brought against an interlocutory procedural decision. Appeals against such decisions are usually deprecated, and it will not usually be the case that permission would be granted to appeal against such a decision under s.604 of the FW Act. 9 In this case, there is no reason to think the Decision will affect the prospects of Inco ultimately succeeding in its application for approval of the Agreement except to the extent that the participation of contradictors in the proceedings may assist the Commission in ensuring that the applicable statutory tests for approval are correctly applied.
[10] Inco submitted that the Decision was “substantive” rather than procedural because it effectively granted the two unions the status of “party”. We disagree. The Commissioner determined no more than that he would hear the unions in relation to the application. What that would actually involve in terms of the production of documents or the capacity to call witnesses or cross-examine witnesses and the like will undoubtedly be the subject of further discretionary procedural decisions by the Commissioner as the matter proceeds. Inco will of course be entitled to be heard as to those matters. The Commissioner did not confer any irrevocable right on the unions which could be characterised as substantive in nature.
[11] Second, contrary to Inco’s submissions, the Decision was plainly not inconsistent with the Full Bench decision in Collinsville. 10 As is apparent from paragraphs [20]-[22] of the Decision, the Commissioner understood that Collinsville was authority for the proposition that a union which was not a bargaining representative for an enterprise agreement did not have a right to be heard in relation to an application for the approval of the agreement simply because it had representational rights in respect of employees who might be employed under the agreement in future. He therefore approached the matter on the basis that none of the three unions had a right to be heard11, but that s.590 of the FW Act conferred on him a “broad discretion ... to permit persons and/or organisations to appear before it and provide evidence and/or oral or written submissions”.12 The Commissioner’s characterisation of the nature of the power invested by s.590 was evidently derived from the following passage in Collinsville:
“[75] We would make the observation however, that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person of organisation.82 In this case the Senior Deputy President chose to exercise that power by permitting the CFMEU to be heard on the question of whether the Agreement passed the BOOT.”
[12] Footnote 82 in the above passage from Collinsville referred to s.590 of the FW Act.
[13] Third, the appeal does not give rise to any arguable case of jurisdictional error. For the reasons explained, the Decision was made in exercise of a broad discretionary power.
[14] Fourth, no arguable case has been demonstrated that the Commissioner erred in the exercise of his discretion. Inco’s submissions in this respect merely demonstrated a preference for a different result rather than any error in the decision-making process.
[15] Finally, the Commissioner’s description of the “untidy position that has emerged in respect to the standing of registered organisations at different stages of enterprise agreement approval proceedings” 13 merely refers to the fact that, in relation to an appeal against a decision to approve an enterprise agreement, s.604 establishes the test for standing to appeal as being whether the appellant is a “person aggrieved” by the decision. No such test applies in relation to the question of who may be heard by the Commission at first instance in relation to an application for approval of an enterprise agreement when, as earlier stated, s.590 is applicable. The different statutory provisions operating at different stages of the hearing process may mean that a person who has a right of appeal against a decision to approve an enterprise agreement may not have had a right to be heard in relation to the approval application at first instance. This point was made in Collinsville as follows14 (quoted in paragraph [20] of the Decision):
“We note that in CEPU and AMWU v Main People Pty Ltd [2014] FWCFB 8429a Full Bench of the Commission determined that a right to represent employees under the terms of the agreement and the likelihood that members of the appellant unions would in the future be employed under the agreement resulted in the appellants having standing to institute the appeal as those factors gave the appellants an interest beyond that of an ordinary member of the public. We would observe that in the context of the statutory scheme established for agreement making and approval, the question whether a person should be heard during an application to approve an agreement is a different question whether a person is aggrieved by a decision for the purposes of bringing an appeal.”
[16] While we would not necessarily agree with the Commissioner’s use of the epithet “untidy” to describe this situation, the Commissioner’s analysis was entirely consistent with Collinsville and does not disclose any error of law as contended by Inco.
[17] The appeal does not otherwise involve any arguable contention of error or raise any issue which attract the public interest. In particular, we do not consider it appropriate to purport to fetter the exercise by individual Members of the Commission of their discretion under s.590 in relation to enterprise approval applications by the imposition of “principles”, as suggested by Inco.
Order
[18] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
S. Zeitz solicitor for Inco Ships Pty Ltd.
B .Cross of counsel with N. Niven for the Australian Institute of Marine and Power Engineers.
L. Doust of counsel for the Australian Maritime Officers’ Union.
Hearing details:
2016.
Sydney:
26 May.
1 [2016] FWC 1637
2 [2014] FWCFB 7940
3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
4 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
5 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
6 (2010) 197 IR 266 at [27]
7 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
8 Wan v AIRC (2001) 116 FCR 481 at [30]
9 See Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3]; Clermont Coal Operations Pty Ltd v Brown[2015] FWCFB 2460 at [17]
10 [2014] FWCFB 7940
11 Decision at [22]
12 Decision at [24]
13 Decision at [24]
14 [2014] FWCFB 7940 at footnote 13.
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