Michael Sheldon-Collins v Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum

[2018] FWC 3420

[2018] FWC 3406 [Note: An appeal pursuant to s.604 (C2018/3241) was lodged against this decision - refer to Full Bench decision dated 4 September 2018 [[2018] FWCFB 5560] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.582—Directions by the President

Daniel King
Jason Deeney
Christopher Hughes
Richard Park
Denis Seiffert
v
Patrick Projects Pty Ltd
(U2014/7097) (U2014/982) (U2014/983) (U2014/1008) (U2014/1059)

VICE PRESIDENT CATANZARITI SYDNEY, 8 JUNE 2018

Application seeking a Direction under s.582 of the Fair Work Act 2009 (Cth).

[1] On 15 May 2018, Mr Christopher Strauss on behalf of the Applicants made an application to the President of the Fair Work Commission (Commission) under s.582 of the Fair Work Act 2009 (Cth) (Act) seeking to consolidate and transfer the following matters to Commissioner Johns:

•  King v Patrick Projects Pty Ltd (U2014/7097) (‘King Matter’);

•  Deeney v Patrick Projects Pty Ltd (U2014/982) (‘Deeney Matter’);

•  Park v Patrick Projects Pty Ltd (U2014/983) (‘Park Matter’);

•  Hughes v Patrick Projects Pty Ltd (U2014/1008) (‘Hughes Matter)’;

•  Seiffert v Patrick Projects Pty Ltd (U2014/1059) (‘Seiffert Matter’); and

•  Strauss v Patrick Projects Pty Ltd (U2014/5970) (‘Strauss Matter’).

[2] On 28 May 2018 the President delegated his functions and powers to me under s.582 of the Act, to specifically determine the Applicants’ consolidation and transfer application. 1 Accordingly, pursuant to the President’s delegation, it is necessary for me to determine this application.

[3] The matter was initially listed for hearing on 31 May 2018, however due to Mr Strauss’ unavailability; the matter was relisted for hearing on 7 June 2018.

[4] It is also noteworthy to mention that upon issuing the initial Notice of Listing on 28 May 2018, Mr Strauss on behalf of the Applicants sought to resolve the matter by seeking the Respondent’s consent to its application for consolidation and transfer. Given that no response was received from the Respondent in respect of this request, the matter proceeded to hearing.

[5] On 5 June 2018, the Respondent filed written submissions responding to the Applicants’ request for consolidation and transfer. The Applicants’ raised several objections concerning the admissibility of those submissions in the hearing before me on 7 June 2018. I have noted those objections, and have determined that there is sufficient material before me to properly deal with this application without having regard to the Respondent’s written submissions. To that end, I have given no weight to the Respondent’s submissions filed on 5 June 2018.

Legislative provision

[6] The relevant section in which this application is made is as follows:

“Section 588 – Directions by the President

(1) The President may give directions under subsection (2) as to the manner in which the FWC is to perform its functions, exercise its powers or deal with matters.

(2)  The President may give a direction that is of a general nature, or that relates to a particular matter, to one or more of the following persons:

   (a)  an FWC Member;

   (b)  a Full Bench;

   (c)  an Expert Panel;

   (d)  the General Manager.

             (3)  The direction must not relate to a decision by the FWC.

(4)  Without limiting subsection (2), the direction may be a direction of the following
kind:

(a)  a direction about the conduct of 4 yearly reviews of modern awards under Division 4 of Part 2-3;

(aa)  a direction about the conduct of 4 yearly reviews of default fund terms of modern awards under Division 4A of Part 2-3;

(b)  a direction about the conduct of annual wage reviews;

(c)  a direction that 2 or more matters be dealt with jointly by one or more single FWC Members or one or more Full Benches;

(d)  a direction about the transfer between FWC Members (including a transfer between Full Benches) of one or more matters being dealt with by the FWC.

…”

The Application

[7] The application to transfer and consolidate was received by the President’s Chambers on 15 May 2018. In that Application, the Applicants submitted that:

•  “[A]ll matters in relation to the Concurrent Applicants, be transferred to Commissioner Johns, so all contestable issues of fact in representation, Respondent evidence filed in the Commission and other issues, are resolved first and then applied in the determination of other matters.”

•  Should a Direction to transfer and consolidate be made, it will “enable issues of fact to be resolved”, such as that concerning legal representation. It would be logical and efficient that such issues be resolved together before proceeding to the determination of the substantive matters. Further, this will allow the representation issues to be utilised and applied in those substantive matters.

•  Commissioner Johns has already issued directions, conducted a conference and hearing, received oral and written submissions, and is in the process of considering several prospective and retrospective issues concerning representation. A further hearing is also anticipated. This “extends to all six (6) Applicants and amounts to a controversy.”

•  “The matters before Deputy President Bull have not yet commenced at hearing, nor has any evidence been heard, in relation to those matters.” The current listing is for a 4 day hearing, commencing on 18 June 2018. It would be most efficient if the issues before Commissioner Johns were resolved so “those determinations could be applied, upon commencement of the matters that are currently listed before Deputy President Bull.” It would appear to be counter intuitive for those matters to proceed while contestable issues of fact remain unresolved.

•  “The matters of the Concurrent Applicants, were intended to be and for the most part were heard concurrently, with several directions and decisions relying upon that concurrency for efficiency, for example, that evidence be heard together so it could be applied to all matters”. This saves time and resources for the Commission. An example of inefficiency is that the Respondent has filed evidence that was intended to be heard by Senior Deputy President Drake in the concurrent hearings, but that material is now before both Commissioner Johns and Deputy President Bull.

•  In the proceedings before Commissioner Johns, “the Respondent through written submissions provided a Circulating Resolution of Directors, collectively referring to and applying to all six (6) of the Concurrent Applicants by way of listing all names and respective matter numbers.”

•  “The concept of all matters being heard concurrently and so managed by a single member of the Commission is not new, as this was the intention of Senior Deputy President Drake”. In any case, “it also appears all contested issues of fact being resolved together would be a most efficient manner...”

•  “There would be no loss or detriment to the Respondent as, all contested issues of fact must be resolved in any case… [H]aving to contest issues of fact more than once results in only more costs to the Respondent.” The Applicants therefore submitted that there would be a saving in the Respondent's time and resources, if a single member were to resolve all of the current contested issues of fact before the substantive issues proceed any further.

Consideration

[8] This application seeks to transfer and consolidate 6 matters (King Deeney, Park, Hughes, Seiffert, and Strauss) with a single Member of the Commission, that is, Commissioner Johns. Whether or not a Direction should be made to consolidate and transfer matters is ultimately a discretionary decision. I have taken into account each of the matters raised in the application filed on 15 May 2018 above, the Applicants’ oral submissions on 7 June 2018, the nature of the 6 matters subject to this application, 2 and have determined not to exercise my discretion to issue a Direction to consolidate and transfer under s.582 of the Act for the reasons below.

[9] It would not be appropriate to transfer and consolidate the matters as they are not, broadly speaking, of a similar nature. The issues of fact and law relevant to the 6 matters subject to this application are also not common.

[10] More specifically, the 4 matters that are currently before Deputy President Bull, 3 relate to the substantive merits of the unfair dismissal applications. Those matters do not share common issues of fact or law with the King Matter currently before Commissioner Johns. The King Matter is a discrete matter, which concerns that of a costs application which was made by the Applicants following the determination of the substantive merits of Mr King’s unfair dismissal application by Senior Deputy President Drake.4 In those circumstances, it would not be appropriate to consolidate the 4 substantive matters with a distinctly different and discrete matter as to costs.

[11] Further, it would not be efficient to transfer and consolidate the 4 substantive matters with the King Matter before Commissioner Johns, given that the 4 matters have already been programmed for a 4 day hearing before Deputy President Bull commencing on 18 June 2018. It would be in my view, inefficient to vacate those hearings, transfer the materials filed by the parties in relation to those proceedings, and to have Commissioner Johns reprogram those substantive proceedings in conjunction with a distinctly different matter as to costs.

[12] In relation to the application to transfer and consolidate the Strauss Matter with the King Matter before Commissioner Johns, I would note that such application would not be possible or permissible given that the Strauss Matter has already been heard, determined, 5 and subsequently dismissed on appeal.6

[13] In the hearing on 7 June 2018, I stated to Mr Strauss that should the Applicants’ application to transfer and consolidate succeed, its concerns with respect to vacating the proceedings before Deputy President Bull would no longer arise. If however, its application was not successful, I stated to Mr Strauss that the functions and powers delegated to me by the President are limited to determining this application for transfer and consolidation under s.582 of the Act. It does not vest any other function and/or power in relation to any other matters. As such, should the Applicants wish to vacate the hearings currently before Deputy President Bull, that such application be made directly with the Deputy President’s chambers.

[14] With the powers and functions delegated to me by the President under s.582 of the Act, for the reasons given above, I have determined not to exercise my discretion to issue a Direction to consolidate and transfer any of the matters subject to this application to Commissioner Johns

[15] Accordingly, the application for consolidation and transfer is dismissed.

VICE PRESIDENT

Appearances:

Mr C. Strauss, on behalf of the Applicants.

Hearing details:

11:00am (AEST)

7 June 2018

Sydney with video link to Perth

 1   Fair Work Act 2009 (Cth), ss.582 and 584.

 2   King, Deeney, Park, Hughes, Seiffert, and Strauss Matters.

 3   Deeney, Park, Hughes, and Seiffert Matters.

 4   King v Patrick Projects Pty Ltd (2016) [PR588080]. An appeal relating to the remedial orders made by the Senior Deputy President was also made and subsequently dismissed by a Full Bench in King v Patrick Projects Pty Ltd[2017] FWCFB 2809.

 5   Strauss v Patrick Projects[2017] FWC 1574.

 6   Strauss v Patrick Projects Pty Ltd[2017] FWCFB 2810.

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