Maritime Union of Australia The v Aboriginal Marine Manning Pty Ltd

[2014] FWCFB 7730

[2014] FWCFB 7730

The attached document replaces the document previously issued with the above code on 30 October 2014 to correct a typographical error in paragraph [9] changing the period of delay from 14 days to 13 days.

Annastasia Kyriakidis

Associate to Justice Ross

Dated 31 October 2014
[2014] FWCFB 7730

DECISION

Fair Work Act 2009
s.604—Appeal of decision
Maritime Union of Australia, The
v
Aboriginal Marine Manning Pty Ltd
(C2014/6237)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK	PERTH, 30 OCTOBER 2014
COMMISSIONER WILLIAMS

Appeal against decision [2014] FWCA 5298 of Commissioner Cloghan at Perth on 5 August

2014 in matter number.

Introduction

[1] Aboriginal Marine Manning Pty Ltd (Respondent) applied under s. 185 of the Fair Work Act 2009 (Act) for the approval of a single enterprise agreement on 11 July 2014. The

agreement is titled Aboriginal Marine Manning Enterprise Agreement 2014 (Agreement). The Maritime Union of Australia (Appellant) was a bargaining representative for the Agreement. On 5 August 2014 Commissioner Cloghan approved the Agreement[1](Decision). At the time the Agreement was approved it covered 41 employees of the Respondent.

[1][2014] FWCA 5298

[2] By notice of Appeal lodged on 8 September 2014 the Appellant seeks permission to appeal the Decision. The notice of appeal was lodged outside of the time prescribed by the

Fair Work Commission Rules 2013 (Rules). In summary, the notice of appeal raises several

grounds of appeal relating to a denial of procedural fairness and whether the Commissioner could have been satisfied that relevant employees genuinely agreed to the Agreement. The ground relating to whether the Agreement passed the better off overall test was not pressed by the Appellant.

Extension of time

[3] The notice of appeal was lodged on 8 September 2014, 34 days after the publication of the Decision and 13 days beyond the period prescribed in Rule 56(2)(a) of the Rules. Accordingly, it is necessary to determine whether an extension of time for the lodging of the appeal should be granted under Rule 56(2)(c), having regard to:[2]

 whether there was a satisfactory reason for the delay;

 the length of the delay;

 the nature of the grounds of appeal and the likelihood that one or more of those

grounds being upheld if time was extended; and

[2014] FWCFB 7730

 any prejudice to the Respondent if time were extended.

[2]See for example: Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; SPC Ardmona Operations Ltd v

[4] During the hearing of the appeal we granted an extension of time to the Appellant for it to lodge the appeal. We did so for the following reasons.

[5] The circumstances of and reason for delay were set out in the statement and oral evidence given before us by Mr Adam Jacka, the National Legal Officer of the Appellant. Briefly stated the Appellant was a bargaining representative for the Agreement. It was not served with a copy of the application to approve the Agreement or supporting statutory declaration as required by Rule 41 and Schedule 1 of the Rules. On 16 July 2014, Mr Jacka gave notice to the Commissioner that the MUA sought to be heard on the application to approve the Agreement. On 25 July 2014 the Commissioner’s Associate provided Mr Jacka with a copy of the Agreement and supporting materials. The MUA did not receive notice of a hearing or any indication that the Commissioner proposed to deal with the application on the papers. The Commissioner approved the Agreement by decision issued on 5 August 2014. The Appellant was not provided with a copy of that decision when it was published.

[6] On 30 August 2014 Mr Jacka learned that the Agreement had been approved the Commission on 5 August 2014. Mr Jacka’s evidence was that thereafter he consulted internally and sought legal advice about the prospects of an appeal. He said that the MUA lodged the appeal as quickly as was practical having regard to the complexity of the matters raised on appeal, the need to confer and obtain advice and the actual drafting and settling of the notice of appeal. Mr Jacka accepted that the MUA could have lodged a “holding appeal” with particularised grounds of appeal to be later supplied, but thought that the course adopted by the Appellant to file a comprehensive notice with particularise grounds was more appropriate. It was submitted by the Appellant that this approach did not cause prejudice to the Respondent.

[7] Ultimately the reason for the delay is twofold. First, until 30 August 2014, the Appellant as a bargaining representative for the Agreement was not aware that the Agreement had been approved. It had not been provided with a copy of the Decision despite being specified in the application as a bargaining representative and having expressed a desire to be heard in relation to the application. It cannot seriously be suggested that this does not satisfactorily explain the delay until 1 September 2014 (given that 30 and 31 August 2014 was a Saturday and Sunday respectively) and we accept that it does.

[8] We also accept that the short delay occasioned thereafter is satisfactorily explained by

the need to consult, take advice and prepare the notice of appeal. None of this was
unreasonable having regard to the nature of the grounds raised by the appeal.

[9] The period of delay (13 days) was relatively short, and more so if account is taken of

the period during which the Appellant was unaware that a decision to approve the Agreement
had been made.

[10] As to the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld, it seemed clear to us that the procedural fairness ground alone had substantial prospects of succeeding and that there was a significant issue about whether relevant employees genuinely approved the Agreement which had good prospects of succeeding on appeal.

[2014] FWCFB 7730

[11] Apart from the prejudice associated with responding to an appeal, no other prejudice to the Respondent consequent on the granting of an extension of time was identified.

[12] Taking into account all of these matters we were satisfied that it was in the interest of justice that an extension of time to lodge the appeal should be granted.

Appeal grounds and consideration

[13] Both the Appellant and Respondent filed a number of witness statements which attached various supporting documents said to be relevant to questions raised by the appeal. During the hearing of the appeal on 29 October 2014 we raised with the parties whether, having regard to the witness statement of Mr Dean Rioli dated 21 October 2018 and annexures “SML4” to “SML6” to the witness statement of Sonya Liddle dated 21 October 2014 the Commission could properly be satisfied that the Respondent took all reasonable steps to notify relevant employees by the start of the “access period”[3]of the time and place at which the vote to approve the Agreement would occur and the method of voting to be used as required by s.180(3) of the Act. This material also raised questions about whether, throughout the access period the relevant employees had access to the Agreement and materials incorporated as required by s. 180(2).

[3]See for definition s.180(4)

[14] After several short adjournments the Respondent advised us that while it could produce evidence that all 41 employees covered by the Agreement received a ballot it could not add to the evidence in Mr Rioli’s statement and in annexures “SML4” to “SML6”. Consequently the parties sought orders by consent that permission to appeal be granted, the appeal be upheld on the basis of ground 2.1 (the procedural fairness ground), the Decision be quashed and that the Respondent be relieved from compliance with the requirement in Rule 10 of the Rules to file a notice of discontinuance of its application for approval the Agreement.

[15] In the circumstances we are satisfied that the Decision is attended with sufficient doubt that it is in the public interest that permission to appeal be granted. We are also satisfied that the Appellant was denied procedural fairness in that as a bargaining representative and having given notice that it wished to be heard on the application it was not made aware that the application would be dealt with on the papers and was not given the opportunity to lead evidence or make submissions in opposition to the approval of the Agreement. Given the matters it is wished to raise have real substance it is appropriate that the Decision be quashed.

Disposition of the Appeal

[16] Permission to appeal is granted. The appeal is upheld on the basis of ground 2.1 of the notice of appeal. The Decision is quashed.

Disposition of the application to approve the Agreement

[17] The Respondent’s application to be relieved from compliance with the requirement in

Rule 10 of the Rules to file a notice of discontinuance of its application for approval of the
Agreement (AG2014/6775) is granted.
[2014] FWCFB 7730

[18] The application in AG2014/6775 is discontinued, notice of which is recorded in the transcript of these proceedings.

PRESIDENT

Appearances:
T. Slevin of Counsel, L. Edmonds for The Maritime Union of Australia

A. Drake-Brockman, D. White for Aboriginal Marine Manning Pty Ltd

Hearing details:

Perth. 2014 29 October

Printed by authority of the Commonwealth Government Printer

<Price code C, PR557234>

Esam and Organ (2005) 141 IR 338; Tokoda v Westpac Banking Corporation [2012] FWAFB 3995