McCaffrey v Indigenous Land Corporation

[2016] FWCFB 1913

[2016] FWCFB 1913

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Allister McCaffrey

v

Indigenous Land Corporation

(C2016/2580)

VICE PRESIDENT WATSON

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 29 MARCH 2016

COMMISSIONER WILSON

Appeal against decision [2016] FWC 80 of Commissioner Booth at Townsville on 21 January

2016 in matter number U2015/8246 – Permission to appeal – Whether grounds of appeal

attract the public interest – Whether appealable error – Fair Work Act 2009, ss. 389, 394,

400 and 604.

Introduction

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[1] This decision concerns an application for permission to appeal against a decision of

Commissioner Booth in which she dismissed Allister McCaffrey’s application for an unfair

dismissal remedy in relation to the termination of his employment by the Indigenous Land

Corporation (ILC).

Grounds of appeal

[2]        The grounds of appeal advanced by Mr McCaffrey are that the Commissioner:

 Failed to correctly apply the decision of the Full Bench in Telum Civil (Qld) Pty Ltd

v CFMEU [2013] FWCFB 2434 when finding that Mr McCaffrey was a casual

employee;

 Failed to apply the relevant common law principles of casual employment and failed

to provide adequate reasons;

 Erred in finding that clause 8 of the 2011-14 Agreement did not constitute an

obligation on the ILC to consult.

[3]        Mr McCaffrey submitted that it is in the public interest to grant permission to appeal

as:

 The decision results in an injustice as the finding that Mr McCaffrey was a casual

employee meant the Commissioner did not have regard to:

o clauses 129, 133(a) and 135 of the 2011-14 Agreement;

o the unfairness of the dismissal;

[2016] FWCFB 1913

o	and that it provided the ILC with an absolute defence to Mr McCaffrey’s
claim.

 The proper application of the legislative tests for a genuine redundancy attracts the

public interest.

 Ensuring the proper application of Telum has an importance beyond Mr McCaffrey.

 Clause 141(c)(ii) of the 2011-14 Agreement preservation of the express or implied

principles of the common law on employment relationships was not properly

addressed.

 Correcting the decision in relation to the construction of s.389(1)(b) and clause 8 is

in the public interest.

 A failure to provide adequate reasons is a ground for establishing the public interest.

[4]        The decision subject to appeal was made under Part 3-2 - Unfair Dismissal - of the

Fair Work Act 2009 (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)). In Coal & Allied

Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy

2

JJ agreed) characterised the test under s.400 as ‘a stringent one’.

[5]        The task of assessing whether the public interest test is met is a discretionary one

3

involving a broad value judgment. 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

4

similar matters.”

[6]        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

5

of an appealable error. However, the fact that the member at first instance made an error is

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not necessarily a sufficient basis for the grant of permission to appeal. As we have

mentioned, s.400(1) provides that permission to appeal must not be granted unless the

Commission considers that it is in the public interest to do so.

The decision at first instance

[7]        Mr McCaffrey was relevantly for the purpose of Commissioner Booth’s decision

employed from 17 April 2009 until his employment was terminated on 19 May 2015. Mr

McCaffrey’s contract of employment provided that he was employed as a non-ongoing casual

employee.

[8]        The ILC submitted that the termination was a genuine redundancy and therefore was

not unfair.

[2016] FWCFB 1913

[9]        It was not necessary for the purpose of determining if Mr McCaffrey was protected

from unfair dismissal to determine if Mr McCaffrey was employed as a casual employee as it

was accepted by ILC that he was employed on a regular and systematic basis. Mr

McCaffrey’s employment status was relevant to the determination of what obligations the ILC

had to consult about the redundancy.

[10]      Commissioner Booth found that the redundancy was due to changed operational

requirements of the enterprise. This finding was not challenged on appeal.

[11]      The 2011-14 Agreement provided at clause 129 for consultation if an ongoing

employee is likely to become excess. The 2011-14 Agreement also provided for consultation

at clause 8.

[12]      Commissioner Booth found that there was no consultation with Mr McCaffrey under

clause 129 or clause 8. She found that clause 129 had no application to Mr McCaffrey as he

was not an ongoing employee. She then said:

“It may well be that in the circumstances clause 8 of the Enterprise Agreement may

require consultation given the organisation was making decisions that affect its

employees. However the remedy for breach of clause 8 is pursuant to clause 15: the

dispute resolution provision in the agreement. That is even if there has been a breach

of clause 8 it cannot be relied on to mandate, for the purposes of the redundancy

provisions of the Act, consultation with employees.

For these reasons, there was no requirement, in terms of s.389 (1) (b) to consult with

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the Mr McCaffrey about the redundancy.”

[13]      Commissioner Booth found that there were no vacancies at the time of termination and

as such it was not reasonable to redeploy Mr McCaffrey into another role. There was no

challenge to this factual finding on appeal.

Consideration

[14]      In our view, there is an arguable case that Commissioner Booth erred when she held

that clause 8 of the 2011-14 Agreement had no application to Mr McCaffrey.

[15]      Clause 129 provides for a process to be followed if on-going employees are likely to

be declared excess to requirements. We accept that there is an arguable case that clause 8

creates a separate and distinct but not inconsistent obligation.

[16]      It was put to Commissioner Booth in final submissions by the ILC that the specific

provision in clause 129 of the 2011-14 Agreement overrode the more general obligation in

8

clause 8. Commissioner Booth endorsed this approach during discussion with Mr Pratt

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during final submissions. Mr Pratt submitted that even if Commissioner Booth found that

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Mr McCaffrey was a casual employee clause 8 still had work to do. We are unsure why

Commissioner Booth found that clause 8 had no work to do. We do not consider the

possibility that Mr McCaffrey could have invoked the dispute resolution procedure provides

an adequate explanation for why clause 8 had no work to do.
[2016] FWCFB 1913

[17]      We find that it is in the public interest to grant permission to appeal. It was put that

there was no public interest consideration because the issues for determination arise from the

terms of employment of a particular employee and the terms of specific enterprise

agreements. We do not agree.

[18] We consider that the proper application of s.387(1)(b) raises public interest

considerations. Further, the reasons given by Commissioner Booth for finding that clause 8 of

the 2011-14 Agreement had no application are arguably affected by error. All modern awards

and all agreements provide for a dispute resolution procedure. The existence of such a

procedure is not sufficient to negate the obligation, if there is such an obligation, to consult

about redundancy.

[19] The proper application of s.389 requires an interpretation of the consultation

obligations of the applicable agreement. This in turn requires a consideration of the

employment status of Mr McCaffrey as some relevant clauses of the agreement are confined

to certain categories of employees. Decisions on these matters are not discretionary decisions.

The grounds of appeal extend to these further issues and any appeal on these matters depends

on this Full Bench determining the accuracy of conclusions reached on relevant findings of

fact and law. Mr McCaffrey’s employment history is quite unusual and his status is far from

clear. We propose therefore to allow permission to appeal on the broader grounds of his

employment status, so that we can then proceed to determine the application of particular

consultation obligations in the light of our conclusions on employment status.

VICE PRESIDENT

Appearances:

Mr D. Pratt on behalf of Mr A. McCaffrey.

Mr R. Prince on behalf of Indigenous Land Corporation.

Hearing details:

2016.

Melbourne.

17 March.

Final written submissions:

Mr A. McCaffrey on 9 March 2016.

[2016] FWCFB 1913

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1

[2016] FWC 80.

2

[2011] FCAFC 54 at [43].

3

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] FCAFC 54 at [44]-[46].

4

[2010] FWAFB 5343 at [27].

5

Wan v Australian Industrial Relations Commission [2001] FCA 1803 at [30].

6

Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28],

affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; NSW Bar Association

v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at

[28].

7

Ibid at [58]-[59].

8

Appeal Book p.507 at [108].

9

Ibid p.522 at PN 1170.

10

Ibid at p.525 at PN1797.