Linfox Australia Pty Ltd v Terence Howell
[2018] FWCFB 464
•25 JANUARY 2018
| [2018] FWCFB 464 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Linfox Australia Pty Ltd
v
Terence Howell
(C2017/6582)
| JUSTICE ROSS, PRESIDENT | MELBOURNE, 25 JANUARY 2018 |
Appeal against a decision by Deputy President Gooley in Brisbane on 15 November 2017 in matter number U2017/9485.
Background
Linfox Australia Pty Ltd (Linfox; the Appellant) has instituted an appeal, and applied for permission to appeal against a decision made by Deputy President Gooley on 15 November 2017[1] (the Decision). The issue at first instance was whether Mr Terence Howell (the Respondent) was a person ‘protected from unfair dismissal’, within the meaning of s.382 of the Fair Work Act 2009(Cth) (the Act) at the time his employment was terminated by Linfox. Section 382 provides:
‘382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.’
In the Decision the Deputy President determined that Mr Howell was an employee to whom the Linfox Australia (Bulk Petroleum) Agreement 2014[2] (the ‘Linfox Agreement’) applied and on that basis dismissed Linfox’s jurisdictional objection.
The relevant background is uncontentious may be summarised as follows:
(i) Mr Howell was employed as the National Dangerous Goods Manager for Linfox’s Resources and Industrial Business Unit.
(ii) Mr Howell’s employment ceased on 18 August 2017 and on 31 August 2017 he lodged an unfair dismissal application.
(iii) Linfox submitted that, at the time of his dismissal, Mr Howell’s remuneration was $150,778.36, which exceeded the ‘high income threshold.’
(iv) It was common ground that if Mr Howell earned more than the high income threshold and his employment was not covered by a modern award;[3] or an enterprise agreement did not apply in relation to his employment;[4] he would be excluded from making an unfair dismissal application.
In the proceedings before the Deputy President, Mr Howell contended that the Linfox Agreement applied to his employment. In support of this contention Mr Howell relied upon the coverage clause of the Linfox Agreement, clause 2, which states:
‘2. COVERAGE
2.1 This Agreement covers:
(a) Linfox;
(b) each Employee; and
(c) the TWU,
in respect of the Sites specified in Appendix 1.
In respect of the Sites specified in Appendix 1, this shall include any replacement site or additional site to service the relevant contracts.
2.2 The relevant terms and conditions of this Agreement shall apply to new sites and new business acquisitions where agreed by the parties. Where the parties agree that the terms of this Agreement shall apply, the parties may negotiate different terms in the new agreement. This may involve, for example, negotiations about rates of pay for newly acquired businesses.’ (emphasis added)
Appendix 1 lists the ‘sites’ referred to in clause 2 and, relevantly, includes Pinnacle Road, Altona North.
The Linfox Agreement defines an ‘Employee’ at clause 7(n):
‘(n) Employee means an employee of Linfox who is a member, or is eligible to be a member, of the TWU who is employed at a Site.’ (emphasis added)
At first instance Linfox submitted that the Linfox Agreement did not apply to Mr Howell and that the agreement only applies to drivers. Linfox conceded it was in the transport industry but made no detailed submissions in opposition to the contention that Mr Howell was eligible to be a member of the TWU.
The Deputy President concluded that the Linfox Agreement applied to Mr Howell, noting that:
‘[24]…I reach this conclusion based on the [plain] and ordinary meaning of the words used in the Agreement. The coverage of the Agreement is not expressed to only apply to employees engaged in a classification set out in the Agreement. The term employee is defined and has a much wider scope than those employed in a classification in the Agreement. It applies to all employees employed at named sites who are eligible to be members of the TWU.
[25] The coverage clause is consistent with other clauses in the Agreement. For example the Agreement at clause 9 provides that Part B applies to all employees. Nowhere in the Agreement are there words which limit the application of the Agreement to drivers.
[26] I am prepared to accept Linfox’s submission that no classification in the Agreement applied to Mr Howell despite some uncertainty about the classification structure in the Agreement.
[27] However this does not preclude him being covered by the Agreement. It may be that Mr Howell’s entitlement to wages does not arise under the Agreement but that does not exclude him from coverage. Further given there is no ambiguity or uncertainty about the coverage of the Agreement it is not necessary to look to the intention of the parties.
[28] In any event nothing put before the Commission would support a finding that the parties intended the Agreement to only apply to drivers. Even if I accepted that the statutory declaration was a relevant document to have regard to in determining the intention of the parties, the document does not assist Linfox as it simply advised that the 2014 Agreement was intended to have the same coverage as the predecessor agreement. The coverage clause in the 2011 Agreement is in the same terms as the 2014 Agreement. Further I note that the scope of the 2011 [Agreement] differed in scope from its predecessor agreement which provided that it covered “employees of Linfox, whether members of the union or not, who are engaged in or in connection with the distribution of petroleum and petroleum based products employed by Linfox in a classification set out in this agreement at the following sites…..”
[29] I am further satisfied that Mr Howell was eligible to be a member of the Transport Workers’ Union. Mr Howell was employed by Linfox as the National Dangerous Goods Manager. Mr Howell gave unchallenged evidence about this role and duties. I am satisfied that Mr Howell was employed in or in connection with the industry of the transport of goods by vehicles or alternatively was employed in other work in connection with driving and transport.’[5]
Having concluded that the Linfox Agreement applied to Mr Howell the Deputy President dismissed the jurisdictional objection.[6] An Order to that effect was issued on 15 November 2017.[7]
The Appeal
An appeal under s.604 of the 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.[8] There is no right to appeal and an appeal may only be made with the permission of the Commission.
Section 400(1) modifies s.604 in relation to a certain category of decisions. It provides:
‘(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.’
[14] The reference to ‘this Part’ in s.400(1) refers to Part 3-2 of the Act, which is concerned with unfair dismissal.
Counsel for Linfox conceded,[9] appropriately in our view, that s.400(1) applied to the present matter; it being an appeal from a decision under Part 3-2 of the Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters, appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)).
Two further observations are also apposite to our consideration of the question of permission to appeal in this case.
First, the Decision is interlocutory in nature and, as acknowledged by the Appellant, appeals against such decisions are usually deprecated and this is a factor relevant to the determination of permission to appeal.[10] The arguments advanced by the Appellant as to why the usual approach to appeals in respect of interlocutory decisions should not be followed in this instance[11] are unpersuasive, for the reasons set out below.
Second, the extent of the arguments advanced at first instance were limited and no evidence adduced as to the relevant objective background facts (referred to in principles 11 and 12 from Berri). A consequence of the limited nature of the case put at first instance is that the precedent value of the Decision is necessarily diminished. A further consequence is that a number of the arguments advanced by the Appellant on appeal were not put by Linfox at first instance. It is not the function of the appeal process to provide a further opportunity for unsuccessful parties to redress perceived deficiencies in their case at first instance, as the High Court put it in Metwally v University of Wollongong:[12]
‘It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.’[13]
The matter before us was listed for hearing in respect of both permission to appeal and the merits of the appeal.
Five grounds are advanced in the Amended Notice of Appeal.
‘The Deputy President,
1.Erred by misapplying the relevant principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri[2017] FWCFB 3005 with respect to interpreting the Agreement.
2.Erred by interpreting the provisions of the Agreement without having regard to the industrial context in which those provisions appear.
3.Erred by making a finding that the Respondent was eligible to be a member of the Transport Workers Union of Australia contrary to the evidence and without having regard to the Agreement as a whole.
4.Erred by not determining whether the Respondent was employed at the relevant site which finding was required.
5.Erred by making a finding that the Agreement applied to the Respondent notwithstanding the Agreement contained no classification structure that could ever be relevant to the job the Respondent performed.’
Appeal Grounds 1, 2 and 5
It is convenient to deal with Grounds 1, 2 and 5 together. The central point advanced by the Appellant is that the Deputy President erred in concluding that Mr Howell was an employee to whom the Linfox Agreement applied.
The principles relevant to the task of construing an enterprise agreement were recently summarised in AMWU v Berri Pty Ltd (‘Berri’).[14] It was common ground at first instance, and on appeal, that Berri was the apposite authority. In Berri the relevant principles were summarised as follows:
1.The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2.The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3.The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4.The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5.The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6.Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7.In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8.Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9.If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10.If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11.The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12.Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13.The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14.Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15.In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.[15]
The Appellant submitted that in construing the coverage clause in the Linfox Agreement the Deputy President failed to properly apply principle 1 from Berri. The essence of the argument advanced was that the Deputy President failed to have regard to the entirety of the Linfox Agreement in construing the coverage clause and that the Deputy President:
‘…simply focussed on the words contained in the coverage clause which led her into error. That’s the nub of the argument that we say enlivens the error.’[16]
The Appellant submits that the intended purpose of the Linfox Agreement, namely that it was never intended to apply to the Respondent, is to be derived from a consideration of all of the terms of the agreement.[17] The Appellant referred to a number of clauses of the Linfox Agreement in support of this proposition (clauses 4,7,18,45,46,48,49,51,73,74,75,76,77 and 85). As counsel for the Appellant put it:
‘But when one understands, from start to finish, the context of that agreement, in my submission, it is clear that the intended purpose of that agreement was to regulate the terms and conditions of persons, that is, drivers that were formerly covered by the Oil Distribution Award, that was its intended purpose.’[18]
We note that in the proceedings at first instance Linfox referred to some of the other terms of the Linfox Agreement in support of its contention that it only applied to drivers; but it was conceded that the argument advanced at first instance was not put in the way it was being advanced on appeal.[19] The observations of the Full Bench of the Commission in XL Express (Personnel) Pty Ltd v Biffin[20] are apposite to the present matter:
‘The Deputy President cannot be fairly criticised for not taking into account a matter which the Appellant did not ask her to take into account. Moreover, on appeal an Appellant would not generally be permitted to raise a matter, which though available, it did not raise or argue at first instance. This is so whether the failure to raise or argue the matter was by omission or by design. The Appellant should be held to the case it ran at first instance. The issue it now raises is not in the nature of a jurisdictional issue going to power. This is a powerful reason alone for not granting permission to appeal. An appeal is not an opportunity to run a better case than that advanced at first instance.’[21]
The Appellant also submits that the Transport Workers’ (Oil Agents/Contractors) Award 2001 (the Oil Award) is incorporated into the Linfox Agreement (see clause 85) and that:
‘…the Oil Award only ever applied to drivers and ancillary type classifications contained therein, so… that the incorporation of that puts some context in relation to the purpose of the agreement.’[22]
A difficulty with the proposition put is that the Oil Award is not in evidence (nor was there any application to admit further evidence in the appeal) and counsel’s submission as to the terms of that award amount to no more than a contested bar table statement.[23] On that basis we do not propose to give it any weight.
Contrary to the Appellant’s submission the Deputy President did not construe the coverage clause devoid of its context. It is apparent from a review of the Decision that the Deputy President had regard to a number of other terms within the agreement, in particular:
· Appendix 1 (see Decision at [10])
· Clause 7 Definitions (see Decision at [11])
· Clause 9 Application (see Decision at [25])
· Clause 4 Operation of Agreement (se Decision at [16])
· Part C Incorporated Terms (see Decision at [17])
The Deputy President also referred to ‘other clauses’ in the Linfox Agreement, at paragraph [25] of the Decision:
‘The coverage clause is consistent with other clauses in the Agreement. For example the Agreement at clause 9 provides that Part B applies to all employees. Nowhere in the Agreement are there words which limit the application of the Agreement to drivers.’[24]
As to ground 5, the fact that Mr Howell’s job did not fall within the classification structure in the Linfox Agreement is relevant, but not determinative, of whether the agreement applied to Mr Howell.[25] The Deputy President accepted that no classification in the Linfox Agreement applied to Mr Howell, but that:
‘...this does not preclude him being covered by the Agreement. It may be that Mr Howell’s entitlement to wages does not arise under the Agreement but that does not exclude him from coverage.’[26]
In reply, counsel for Mr Howell referred to the relevant industrial history and submitted that:
‘to the extent that the surrounding circumstances do provide some context and interpretation of the 2014 Agreement it is submitted that the change to the coverage clauses from the 2007 agreement to the 2014 agreement supports the Deputy President’s finding. In contrast to the broad coverage of the 2014 Agreement the application of 2007 Agreement was expressly limited to employees:
“… engaged in or in connection with the distribution of petroleum and petroleum based products employed by Linfox in a classification set out in this agreement…”’[27]
There is considerable force in the Respondent’s submission that the change to the coverage clauses from 2007 Agreement to the 2014 Agreement supports the Deputy President’s finding. The change in language suggests an intention to expand coverage.[28] The Appellant was unable to explain the change in the coverage clauses between the 2007 and 2014 Agreements.[29]
In all the circumstances we are not persuaded that the Appellant has established an arguable case that the Deputy President made a significant error of fact in respect of this issue. Further, we are not satisfied that it would be in the public interest to grant permission to appeal in respect of this ground having regard to the fact that the point was not taken at first instance.
Appeal Ground 3
The Deputy President dealt with the eligibility issue at paragraphs [23] and [29] of the Decision:
‘Linfox conceded it was in the transport industry and made no detailed submission in opposition to the contention that Mr Howell was eligible to be a member of the TWU...
I am further satisfied that Mr Howell was eligible to be a member of the Transport Workers’ Union. Mr Howell was employed by Linfox as the National Dangerous Goods Manager. Mr Howell gave unchallenged evidence about this role and duties. I am satisfied that Mr Howell was employed in or in connection with the industry of the transport of goods by vehicles or alternatively was employed in other work in connection with driving and transport.’[30]
The Appellant submitted that the Deputy President erred in finding that Mr Howell was eligible to be a member of the TWU. It was contended that there was no basis in the evidence for such a finding.
As mentioned earlier, at first instance Linfox conceded that it was in the transport industry and made no detailed submissions in opposition to the contention that Mr Howell was eligible to be a member of the TWU. The transcript of the proceedings at first instance demonstrates the limited nature of the submissions by Linfox in respect of this issue:
‘Deputy President: Is there anything else you want to say to me, in relation to coverage? What do you say in relation to the issue of eligibility to be a member of the TWU?
Mr Katsifolis: Deputy President, whilst Mr Howell was employed by Linfox, who is part of the transport industry, we’re saying that his – he wasn’t performing work that was in connection with driving or transport specifically.
Deputy President: Didn’t he inspect trucks for their safety performance?
Mr Katsifolis: He did, yes.
Deputy President: Because the rules of the Transport Workers’ Union, as both an industry and classification, would you contend that Linfox is not in the transport industry?
Mr Katsifolis: No, I don’t Deputy President.
Deputy President: is there anything else- - -
Mr Katsifolis: There is nothing else.’[31]
On appeal, counsel for Linfox acknowledged that its submissions at first instance were ‘not at all wholesome.’[32] Counsel also conceded that the TWU’s eligibility rules were ‘very, very broad.’[33]
The Registered Rules of the TWU define who can be a member of the TWU. Annexure A describes the industry in connection with which the union is registered:
‘ANNEXURE A - DESCRIPTION OF INDUSTRY IN CONNECTION WITH WHICH THE UNION IS REGISTERED
(a) In or in connexion with road or aerial transport, delivery of milk, sanitary carting, mechanical excavation of earthworks and mechanical or animal-power haulage or driving industries but not so as to include the industries of transport by water, transport by Railways (except the despatch to or from railways of goods and the necessary loading or unloading operations connected therewith and shunting operations by horse-power), tramways passenger transport, driving of stationary engines, driving of passenger lifts, and driving of agricultural machines and implements in use for agricultural pursuits.
AND the industry of chauffeurs, conductors, and attendants on or about motor vehicles and employees engaged in and about garages, motor stables, and other similar places in the repair and maintenance of motor vehicles or as attendants.
(b) (i) the production, sale and distribution of
(1) gas including refined and residue oil gas, and
(2) by-products of that industry and goods from the products of that industry, including coke, tar, pitch fuel, sulphate of ammonia and benzol;
(ii) In bottling, packing, delivering, installing and maintaining all or any types of gas, including liquified petroleum gas, propane and butane used for all purposes;
(iii) In the production, piping, reticulation, distribution and sale of all or any types or forms of natural gases.’
Appendix B sets out the eligibility rule for the TWU:
‘ANNEXURE B - CONDITIONS OF ELIGIBILITY FOR MEMBERSHIP
(A) (1) The Union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:
(a) The transport of persons and/or passengers, and/or goods, wares, merchandise, or any material whatsoever, by or on vehicles or animals or by aircraft or by motor, steam, oil, electric or other mechanically-propelled contrivances; drivers, assistants and conductors of same, and stable work wheresoever performed, including the work of attendance on horses and other beasts of burden, whether in stables or otherwise; all yard and garage cleaning and other work in connexion with driving and transport, including, washing, greasing, oiling, cleaning, polishing, tyre-fitting and general attendance on horse or mechanically-propelled vehicles and mechanical contrivances, training and breaking-in of horses, loading and unloading on to and/or from any vehicle; shunting by horse-power, supervising and collecting moneys, or washing cans in connexion with the distribution of milk, working in pits, tarring and washing pans, ploughing in of night soil, digging trenches and burying soil in connexion with sanitary work, ploughing in conjunction with the construction and excavation of earthworks; and
(b) All driving; and
(c) Chauffeurs, Conductors, and Attendants on or about motor vehicles, and employees engaged in and about Garage, Motor Stables, and other similar places in the repair and maintenance of motor vehicles, or as attendants.
(A) (2) For the purposes of this rule a person shall be deemed to be employed in one or more of the specified industries, occupations, callings, vocations or industrial pursuits if:
(i) his or her usual occupation is that of an employee in one or more of the specified industries, occupations, callings, vocations or industrial pursuits; or
……….’
Having regard to the broad character of the TWU’s eligibility rules and Mr Howell’s unchallenged evidence about his role and duties (including that he inspected trucks for their safety and was engaged in providing advice and assistance to drivers),[34] we are not persuaded that the Appellant has established an arguable case of error in respect of this ground of appeal.
Appeal Ground 4
As is apparent from clause 2 of the Linfox Agreement (see [4] above), the agreement only applies to employees employed at sites specified in Appendix 1, one of which is the Altona North site.
The Appellant contends that the evidence does not support the proposition that Mr Howell was employed at the Altona North site.[35] Counsel for Linfox appropriately conceded that the argument put on appeal was not ‘directly advanced’[36] before the Deputy President and that it was a ‘deficiency in the way that the argument was run below.’[37]
We note that in the proceedings at first instance the Applicant (that is, the Respondent to the appeal) submitted that Mr Howell was employed by Linfox at the Pinnacle Road Altona North site. This submission was supported by Mr Howell’s evidence and that of Mr Kuschert (Exhibit R4 at paragraph [12] and ‘CK-2’).[38] Accordingly, the Deputy President had before her evidence, (advanced by Linfox) that (at least for the purposes of calculating the value of the personal use of a motor vehicle) the Altona North site was used as a base. In the absence of Linfox otherwise asserting that Mr Howell was not employed at the Altona North site, it was open to the Deputy President to find that Mr Howell was employed at a site listed in Appendix 1. Further, such a finding may be inferred from the Deputy President’s conclusion that the Linfox Agreement applied to Mr Howell.
In all the circumstances we are not persuaded that the Appellant has established an arguable case that the Deputy President made a significant error of fact in respect of this issue. Further, we are not satisfied that it would be in the public interest to grant permission to appeal in respect of this ground having regard to the fact that the point was not taken at first instance.
Appeal Ground 5
The question in the proceedings at first instance was whether the Linfox Agreement applied to Mr Howell in relation to his employment. Section 52(1) of the Act sets out when an enterprise agreement applies to an employee:
‘52 When an enterprise agreement applies to an employer, employee or employee organisation
When an enterprise agreement applies to an employee, employer or organisation
(1)An enterprise agreement applies to an employee, employer or employee organisation if:
(a)the agreement is in operation; and
(b)the agreement covers the employee, employer or organisation; and
(c)no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.
Enterprise agreements apply to employees in relation to particular employment
(2)A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.’
Section 53 of the Act sets out when an enterprise agreement covers an employee. Section 53(6) provides:
‘A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.’
Section 53(6) is in very similar terms to s.52(2). The meaning of s.53(6) was recently considered by the High Court, in ALDI Foods Pty Limited v Shop, Distributive and Allied Employees Association.[39]At [31] of the judgment the High Court said:
‘In this context, the natural meaning of the reference in s 53(6) to "particular employment" of an employee is to the description of the employee's job in the agreement. In this regard, the terms of cl 5 of the Agreement refer to the job descriptions of employees whose employment the Agreement will regulate when it comes into operation. It is a natural and ordinary use of language to speak of the Agreement as covering these employees.’
The Appellant contends that as s.52(2) contains the same text as s.53(6) (with the exception that the word ‘covering’ is replaced with the word ‘applying’) there is no reason to suggest that it would have a different meaning. On this basis it is put that the Linfox Agreement could never have applied to the Respondent, for the following reasons:
‘In this regard, the Agreement does not contain any other classifications, job descriptions or the like that could be referable the Respondent’s job. There is simply nothing in the Agreement and consequently, it is submitted that the Deputy President erred in construing that the Agreement applied to the Respondent.’[40]
It seems to us that the submission put suffers from the vice of taking the High Court’s comments out of context and elevating them to a rule of law applicable in all circumstances. For our part we doubt that the Court can be taken to mean that an enterprise agreement does not apply to an employee unless the employee’s job falls within the scope of the classification structure in the agreement.
We note that the words ‘particular employment’ in s.52(2) were the subject of comment in the Fair Work Bill Explanatory Memorandum (at [205]):
‘Subclauses 47(3), 48(3), 52(2) and 3(6) make it clear that a reference in the Bill to a modern award or enterprise agreement applying to, or covering, an employee is a reference to the award or agreement applying to, or covering, the employee in relation to particular employment. This means that, if a national system employee has more than one job, each job is treated separately in determining the effect of an award or agreement on the employee’s entitlements in relation to each job. For instance, the rule that only one enterprise agreement can operate in relation to a person at a particular time (see clause 58) does not mean that two agreements cannot cover, or apply to, an employee in relation to two different jobs.’
The submission advanced by the Appellant does not sit conformably with the above extract from the Explanatory Memorandum. Further, in the proceedings at first instance Linfox did not advance an argument based on the construction of s.52(2).
We are not persuaded that the Appellant has established an arguable case of error in respect of this ground; nor are we satisfied that it would be in the public interest to grant permission to appeal having regard to the fact that the point was not taken at first instance.
Conclusion
As mentioned earlier, the Decision was made under Part 3-2 of the Act and s.400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one.’[41] The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so.’
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[42] 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.’[43]
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.[44] However, the fact that the member at first instance made an error is not necessarily sufficient basis for the grant of permission to appeal.[45]
The Appellant submits that it is in the public interest that permission to appeal be granted, for the reasons set out at paragraph [18] of their outline of submissions, as supplemented in the course of oral argument. In particular, the Appellant contends that permission to appeal should be granted because it is in the public interest to do so, for the following reasons:
there may be enterprise agreements, in the transport industry or at large, with respect to which industrial organisations are ‘parties’ that have coverage clauses which are either the same or similar to the Linfox Agreement;
the Appeal raises important matters with respect to the construction of ss. 52 and 53 of the Act;
(iii)the Decision is inconsistent with the general principles set out in Berri;
(iv)the consequence of the Decision is a result that was never intended by the drafters nor those that negotiated the Linfox Agreement; and
the Decision has ramifications for the Appellant beyond this single issue.
In support of point (i), counsel for the Appellant tendered extracts from various transport agreements said to have ‘similar effect, or potentially similar effect, in relation to the coverage clause of [the Linfox Agreement]’.[46] This material was advanced to make good the point that there are other agreements that fall into a same or similar category to the one before us, thus, it is submitted, enlivening public interest.[47]
We are not satisfied that the point advanced enlivens public interest. The Appellant is effectively inviting us to conclude that the Decision has at least potential ‘flow on’ consequences in respect of a number of other agreements and relies on extracts from other agreements to make good the point. The argument put is unpersuasive. The potential ‘flow on’ consequence is, at best, speculative. Each agreement must be construed on its own terms having regard to its context and purpose. Further, as we have mentioned, a consequence of the limited nature of the case put at first instance is that the precedent value of the Decision is necessarily limited.
The other contentions raised by the Appellant said to enliven the public interest do not advance the matter further.
As to point (ii), for the reasons given, the appeal is not an appropriate vehicle to consider the interpretation of ss.52 and 53 of the Act.
As to points (iii) and (iv), for the reasons, given we are not persuaded that the Appellant has established an arguable case that the Deputy President erred in her application of the Berri principles, particularly given the limited nature of the case put by Linfox at first instance.
As to point (v), a consequence of the limited nature of the case put at first instance is that the precedent value of the Decision is necessarily diminished.
The Decision discloses no error of principle warranting correction on appeal. Nor is the Decision attended with sufficient doubt as to warrant its reconsideration. Contrary to the Appellant’s contention the Decision is not plainly unjust and nor are we persuaded that substantial injustice may result if permission to appeal is refused.
This is a case in which the Appellant elected to run a limited argument in an interlocutory first instance proceeding and suffered the consequences. The function of the appeal process is not to provide an opportunity for an unsuccessful party to redress any perceived deficiencies in the manner in which they ran their case at first instance.
We are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal. Nor are we persuaded that the Appellant has established an arguable case of error in relation to the Decision or that there are any other considerations that warrant the grant of permission to appeal. Accordingly, permission to appeal is refused.
PRESIDENT
Appearances:
Mr Baroni Counsel for the Appellant.
Mr McKenna Counsel for the Respondent.
Hearing details:
2018.
Melbourne:
January, 8.
[1] [2017] FWC 5995.
[2] [2014] FWCA 7278.
[3] s.382(b)(i) of the Act.
[4] s.382(b)(ii) of the Act.
[5] [2017] FWC 5995 at [24]-[29].
[6] Ibid at [31].
[7] PR597747.
[8] This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[9] Transcript of proceedings 8 January 2018 at [17]-[18].
[10] See Hutton v Sykes Australia Pty Ltd[2014] FWCFB 3384 at [3]; Clermont Coal Operations Pty Ltd v Brown[2015] FWCFB 2460 at [17]; and Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’ Union [2016] FWCFB 3370 at [9].
[11] Outline of submissions for the Appellant, 14 December 2017 at [20]-[21].
[12] (1985) 60 ALR 68.
[13] Ibid at 71.
[14] [2017] FWCFB 3005.
[15] [2017] FWCFB 3005 at [114].
[16] Transcript of proceedings 8 January 2018 at [22].
[17] Transcript of proceedings 8 January 2018 at [77]-[78].
[18] Transcript of proceedings 8 January 2018 at [52].
[19] Transcript of proceedings 8 January 2018 at [46].
[20] [2017] FWCFB 5441.
[21] Ibid at [34].
[22] Transcript of proceedings 8 January 2018 at [113].
[23] Transcript of proceedings 8 January 2018 at [260]-[263].
[24] [2017] FWC 5995 at [25].
[25] See De Havilland Aircraft Pty Ltd v Boyd (1948) 61 CAR 735 at 737 per Kelly J (with whom Foster and Kirby JJ agreed); Spalding v Can’t Tear ‘Em Pty Ltd (1999) 99 IR 1 at [7] per Wilcox J.
[26] [2017] FWC 5995 at [27].
[27] Respondent’s outline of submissions, 28 December 2017 at [15].
[28] This proposition was discussed in oral submissions at first instance between the Linfox representative and the Deputy President at Transcript of proceedings 10 November 2017 at [35]-[42]; Appeal Book pages 12–13.
[29] Transcript of proceedings 8 January 2018 at [53]-[56].
[30] [2017] FWC 5995 at [23] and [29].
[31] Transcript of proceedings 10 November 2017 at [115]-[122].
[32] Transcript of proceedings 8 January 2018 at [129].
[33] Ibid at [213] – [215].
[34] Exhibit AI at [16], [19], [22]-[25]; Appeal Book pages 224-226.
[35] Outline of submissions for the Appellant, 14 December 2017 at [45]-[49].
[36] Transcript of proceedings 8 January 2018 at [136].
[37] Ibid at [155].
[38] Applicant’s submissions in opposition to the jurisdictional objection, 30 October 2017 at [18]; Appeal Book page 84.
[39] [2017] HCA 53, 6 December 2017.
[40] Outline of submissions for the Appellant, 14 December 2017 at [56].
[41] (2011) 192 FCR 78 at [43].
[42] 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 paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
[43] (2010) 197 IR 266 at [27].
[44] Wan v AIRC (2001) 116 FCR 481 at [30].
[45] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27].
[46] Transcript of proceedings 8 January 2018 at [188].
[47] Ibid at [190]-[193].
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