Joseph Shorey v Fes Coal Pty Ltd
[2018] FWCFB 6100
•1 OCTOBER 2018
| [2018] FWCFB 6100 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Joseph Shorey
v
FES Coal Pty Ltd; Construction, Forestry, Maritime, Mining and Energy Union
(C2018/4849)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 1 OCTOBER 2018 |
Application to dismiss Notice of Appeal against decision of Deputy President Kovacic in Canberra on 13 August 2018 in [2018] FWCA 4749 – standing – whether “person aggrieved”.
[1] On 4 September 2018, by way of Notice of Appeal, Mr Joseph Shorey applied under section 604 of the Fair Work Act 2009 (Act) for permission to appeal against a decision of Deputy President Kovacic to approve the FES Coal Pty Ltd Greenfields Agreement 2018 (the FES Agreement) on 13 August 2018 (the approval decision).
[2] On 13 September 2018, FES Coal Pty Ltd (FES) applied to have the Notice of Appeal dismissed on the basis that Mr Shorey is not ‘a person aggrieved’ by the approval decision. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) supports the application made by FES.
[3] Section 604(1) relevantly provides:
“A person who is aggrieved by a decision.... made by the FWC.... may appeal the decision, with the permission of the FWC.”
[4] In determining whether one is a “person aggrieved” for the purposes of bringing an appeal for which permission is necessary under the Act, it is necessary to consider the relevant statutory context in which the decision, the subject of the appeal, is made. Relevantly, the approval decision is a decision made under Part 2-4 of the Act to approve a greenfields enterprise agreement.
[5] A person is aggrieved by an act or decision which operates in restraint of what would otherwise have been their legal rights. 1 The expression ‘a person who is aggrieved by a decision’ should not be interpreted in a restrictive way2 and is capable of extending beyond persons whose legal interests are affected by the decision in question, to persons with an interest beyond that of an ordinary member of the public.3 However, mere intellectual or emotional concern is not enough.4
[6] In the present case, the facts can be shortly stated:
1. Mr Shorey is not, and has never been, an employee of FES.
2. Mr Shorey was employed by One Key Workforce Pty Ltd (One Key Workforce) on 30 June 2016. 5
3. On 31 August 2018, administrators were appointed to One Key Workforce 6 following a decision of the Full Court of the Federal Court of Australia to quash the approval of the RECS (QLD) Pty Ltd Enterprise Agreement 20157(RECS Agreement) thatcovered One Key Workforce and its employees.
4. On 6 September 2018, Mr Shorey was offered employment with OKR Coal Australia Pty Ltd (OKR Coal), part of the One Key Group, under the Valley Labour Services Pty Ltd Enterprise Agreement 2017. 8 There is no dispute that the offer of employment was accepted by Mr Shorey.
5. On 10 September 2018, Mr Shorey’s employment with One Key Workforce was terminated. 9
6. FES, One Key Workforce and OKR Coal are related entities.
[7] Mr Shorey says he is a person aggrieved by the approval decision because:
1. The time to determine standing to bring the appeal is the date of the Notice of Appeal (that is, 4 September 2018). Prior to 6 September 2018, he was an employee “who will be covered by” the FES Agreement.
2. The conduct of FES’ related entity One Key Resources Pty Ltd (One Key Resources) and the CFMMEU in resolving a dispute and to apply an orderly process to shift employees to FES affected Mr Shorey, among other employees.
3. One Key Resources and the CFMMEU’s conduct wholly denied Mr Shorey the ability to negotiate a new enterprise agreement; and
4. FES has given no undertaking to not seek to transfer or offer employment to former employees of One Key Workforce.
[8] We deal with each contention in turn.
Relevant time for the purposes of determining standing
[9] An appeal under section 604 of the Act may only be made with permission, and the time for determining standing to apply for permission is not fixed. While it is necessarily the case that a person must have the requisite standing to bring an appeal, it is also the case that a person whose legitimate interest in an appeal ceases to exist no longer has standing to pursue it. That is because no legitimate purpose can be achieved by continuing with the proceeding. 10
[10] We do not accept Mr Shorey’s submission that questions of standing can only properly be determined on a full hearing of the substantive appeal. It is not uncommon for questions of standing to be determined as a preliminary or threshold question before the hearing of a full appeal. Whether standing is determined as a preliminary question or in the course of the substantive appeal depends entirely upon the circumstances. The desirability of dealing with the question of standing as a preliminary question is set out in the statement of Ian Grant Humphreys 11 filed in support of dismissal of the appeal on the basis of an absence of standing. The question of standing in the circumstances of this case is very much confined because the relevant facts going to standing are largely uncontested. In these circumstances, if the question of standing were not determined as a preliminary question, the parties, and in particular FES and the CFMMEU, would be put to the full cost of responding to an appeal in circumstances where Mr Shorey is likely not to have standing to bring and maintain it. Such a result would be plainly unreasonable and unjust.
[11] To the extent that Mr Shorey submits that questions of standing should ordinarily be resolved at full hearing, that is a full hearing on the question of whether he has standing, we consider that the opportunity has been afforded by the hearing of the FES application, the subject of this decision. Directions were issued on 14 September 2018 requiring the parties to file an outline of submissions “and any witness statements and other documentary material” on which they sought to rely. The directions made clear that the hearing was to deal with the issue of standing and each party was given an opportunity to present their respective case, as contended for by Mr Shorey. During the course of the hearing on 27 September 2018, it was clear that beyond the material filed by Mr Shorey there was no further probative evidence to which he could point that would be relevant to the question of his standing to bring the appeal. It follows that Mr Shorey’s contentions in this regard are without substance and are rejected.
Resolution of dispute between One Key Resources and the CFMMEU and the proposed process to shift employees to FES
[12] Mr Shorey submits that because One Key Resources and the CFMMEU agreed that FES and the CFMMEU would negotiate a greenfields agreement to cover all employees of One Key Workforce at the relevant time, he has a relevant interest in the FES Agreement and consequently in the approval decision.
[13] A media release of the CFMMEU on 29 August 2018 quotes Tony Maher, CFMMEU National President, as saying “we have negotiated a new greenfield agreement with One Key’s parent company Fircroft that will cover all employees and lock in rights to permanent employment.” 12
[14] Mr Shorey also relies on a “CFMEU Member Update Regarding One Key” dated 30 August 2018, which says:
“What happens to workers covered by the RECS agreement?
The RECS agreement is just one of a number of agreements covering workers in the One Key group. The most likely outcome is that workers will be offered new jobs under the Union greenfield agreement with new One Key employing entity FES Coal Pty Ltd.” 13
[15] The CFMMEU media release and its subsequent Member Update indicate the status of negotiations between FES and the CFMMEU on 29 and 30 August 2018. They confirm that matters were still being worked through at that time and that there were a number of different industrial instruments relevant to employees in the One Key Group. They do not establish any interest of Mr Shorey in the FES Agreement. Whatever may have been envisaged at the time, Mr Shorey was ultimately employed by a different entity within the One Key Group, namely, OKR Coal. He was never offered employment with FES under the FES Agreement or otherwise.
[16] Mr Shorey also relies on an agreement purportedly made in August 2018 between the administrators of One Key Workforce and One Key Resources. The agreement explains that “OKR wishes to effect an orderly transition of employment” of One Key Workforce’s employees “to one of OKR’s related entities” (OKR being a reference to One Key Resources). It imposes conditions on the “proposed movement and maintenance of employment” of those employees if the administrators were to first form the view that such was “an appropriate and lawful” course. The conditions include that current employees of One Key Workforce as at 31 August 2018 be:
1. offered employment with FES;
2. conditional on their resignation from One Key Workforce; and
3. in the same or substantially similar position to that held on 31 August 2018. 14
[17] As is clear from the agreement, the administrators were given discretion as to whether the proposed movement and maintenance of employment of employees from One Key Workforce to FES was both “appropriate and lawful”. On a fair reading of the agreement, it is not a binding promise to offer Mr Shorey employment with FES. FES is not a party to the agreement. Nor is Mr Shorey a party to the agreement and it is clear in any event that he was not offered employment on the basis set out in the agreement or otherwise. The agreement, while it may have contemplated circumstances relevant to him in August 2018, did not ultimately affect him in any relevant sense. It does not establish that he is a person aggrieved by the approval decision.
Whether Mr Shorey was denied the ability to negotiate a new enterprise agreement
[18] It is well established that the Act provides for bargaining both with and without unions, without preference, 15 including in the context of greenfields agreements. There is no reason to construe the conduct of FES in making the FES Agreement before employing any employees as any denial of rights in connection with bargaining for an enterprise agreement under Part 2-4 of the Act. There is no dispute that FES had no employees at the time the FES Agreement was made. At that time, a greenfields agreement was the only option available to it under the Act. We are not persuaded that Mr Shorey was denied any right to participate in enterprise bargaining with FES. In the absence of an employment relationship between them, no such right existed.
[19] To the extent that it is necessary to consider the issue, we are also satisfied that there was a cogent business rationale for the making of the FES Agreement at the time it was made. One Key Resources was dealing with the significant consequences of a decision to quash the RECS Agreement. The seriousness of those consequences is laid bare in the One Key Workforce “Second Report to Creditors” of 20 September 2018, wherein Administrators expressed a preliminary view that it caused One Key Workforce to become insolvent. 16 It was reasonable for FES to seek to settle the terms of future industrial regulation for employees affected by that decision in the interests of certainty both for its own business and for those who would become its employees.
Whether FES can seek to transfer or offer employment to former employees of One Key Workforce
[20] Mr Shorey submits that he has a relevant interest arising from the absence of an undertaking by FES not to transfer or offer employment to him (or other former employees of One Key Workforce) with FES in the foreseeable future.
[21] It is well established that an employee cannot be transferred from one employer to another without their express or implied consent. 17 It is, of course, possible that at some future time, Mr Shorey might be offered employment with FES. He will then have the choice whether to accept that offer or to refuse it. Absent his consent, it cannot occur. The submission must be rejected.
Legitimate interest in ensuring that the Commission acts within its jurisdiction
[22] Mr Shorey also contended that his interests fell into that which the Full Court of the Industrial Relations Court in Tweed Valley Food Processors Pty Ltd v Ross and Others 18 described as a wider category of people that has a legitimate interest in ensuring that the Commission acts within its jurisdiction than those who are directly affected by a particular decision, and so are allowed to agitate its merits.19 True it is that registered organisations, both employee and employer organisations, peak bodies and regulators, amongst others, might have such a relevant interest. Mr Shorey did not explain how he fell into this wider category beyond asserting the fact and relying upon the matters to which reference has already been made. The suggestion by Mr Shorey that he does not fall under a known category of exclusion from the wider second limb, as he is neither an ordinary member of the public, is not pursuing academic interest, and is not merely a busybody, takes the matter no further. He has not pointed to any basis upon which he can properly contend that he has a legitimate interest in ensuring that the Commission acts within its jurisdiction that is distinct from that of those who are directly affected by the approval decision. It follows that this contention is rejected.
Conclusion
[23] Mr Shorey is not, and has never been, an employee of FES or a person who is covered by the FES Agreement. He was not involved in negotiations for the FES Agreement and nor could he have been. There is no evidence to suggest that he is a representative of other persons who may be affected by the approval decision, or that it operated to restrain what would otherwise have been his legal rights in any way. There is also no basis for concluding that he has a legitimate interest in ensuring that the Commission acts within its jurisdiction that is distinct from that of those who are directly affected by the approval decision.
[24] At its highest, Mr Shorey was an employee who might possibly have come to be covered by the FES Agreement on or prior to 10 September 2018 had he been offered and accepted employment with FES. That did not occur. He was offered, and he accepted, employment with OKR Coal.
[25] On the material before us, we are not persuaded that Mr Shorey has a relevant interest beyond that of an ordinary member of the public such that he is a “person aggrieved” by the approval decision.
[26] It follows that Mr Shorey does not have standing to apply for permission to appeal the approval decision. The appeal brought by him is incompetent. An appeal cannot succeed if it is brought by a person who does not have standing to institute the appeal. It follows that the appeal is dismissed.
Order
[27] We order as follows:
1. the appeal in C2018/4849 is dismissed;
2. the hearing of the appeal scheduled for 10.00am on Tuesday, 16 October 2018 is vacated; and
3. the directions issued on 10 September 2018 are set aside.
DEPUTY PRESIDENT
Appearances:
R Markham for the Appellant
I Humphreys for FES Coal Pty Ltd
C Howell of counsel for the Construction, Forestry, Maritime, Mining and Energy Union
Hearing details:
2018.
Melbourne and Sydney (video link):
September 27.
Printed by authority of the Commonwealth Government Printer
<PR700951>
1 Tweed Valley Fruit Processors Pty Ltd v Ross and others (1996) 137 ALR 70 at [90]
2 Attorney General (Gambia) v N’Jie (i.e. [1961] AC 617 at 634, cited with approval by Gibbs CJ in Koowarta v Bjelke-Peterson (1982) 153 CLR 168 at 184 - 185)
3 (1996) 137 ALR 70 at [90]-[91]; Re Australian Industry Group[2010] FWAFB 4337 (11 June 2010) at [113]
4 Rangi v Advance Exchange Pty Ltd & Ors [2014] FWCFB 7938
5 Form F7 Notice of Appeal
6 Exhibit 4, Letter to Joseph Shorey signed by Justin Walsh dated 6 September 2018
7 [2015] FWCA 7516; One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 and Orders made in NSD2073/2017 (28 August 2018)
8 Exhibit 5, Email from Cassie Bainbrigge dated 6 September 2018 together with attachment titled “Letter of Offer”
9 Exhibit 4
10 Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3, citing Re Williams and Australian Electoral Commission (1995) 38 AL 366
11 A partner of Ashurst, solicitors for FES Coal Pty Ltd
12 Exhibit 2, “Tony Maher: Another Nail in the Coffin for ‘Permanent Casual’ Rort”, CFMEU media release dated 29 August 2018
13 Exhibit 3, CFMEU Member update regarding One Key dated 30 August 2018
14 Exhibit 1, Deed of Indemnity dated August 2018
15 Construction, Forestry, Mining and Energy Union v John Holland [2015] FCAFC 16; (2015) 228 FCR 297
16 One Key Workforce Pty Ltd Second Report to Creditors dated 20 September 2018, filed on 27 September 2018
17 Roberg v FGP Company Pty Ltd & Steelworks Australia Pty Ltd[2013] FWC 4947 (20 August 2013); Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 (19 July 2011); McCluskey v Karagiozis [2002] FCA 1137 (12 September 2002); Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014
18 (1996) 65 IR 393
19 Ibid at 416
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