Mr Nigel Scarborough v Sandfire Resources Nl T/A Sandfire Resources Nl
[2017] FWCFB 3105
•7 JUNE 2017
| [2017] FWCFB 3105 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Sandfire Resources NL T/A Sandfire Resources NL
(C2017/1040)
VICE PRESIDENT CATANZARITI | SYDNEY, 7 JUNE 2017 |
Appeal against decision [2017] FWC 947 of Commissioner Platt at Adelaide on 15 February 2017 in matter number U2016/12820.
Introduction
[1] Mr Nigel Scarborough has applied for permission to appeal an order issued by Commissioner Platt on 15 February 2017 1 (Order). The effect of the Order was to dismiss Mr Scarborough’s application for an unfair dismissal remedy application made under s.394 of the Fair Work Act 2009 (FW Act). The Commissioner published reasons for the decision embodied in the Order on 15 February 20172 (Decision).
[2] At the hearing of the appeal before us, both parties sought permission, under s.596 of the FW Act, to be represented by lawyers. We were satisfied that the matter was invested with sufficient complexity such that we would be assisted in the efficient conduct of the matter if we allowed Mr Scarborough to be represented by Mr Fogliani and Sandfire Resources NL T/A Sandfire Resources NL (Sandfire) by Mr Smith and we granted both parties permission to be so represented, pursuant to s.596(2)(a) of the FW Act.
Background
[3] Sandfire objected to Mr Scarborough’s unfair dismissal application, contending before the Commissioner that Mr Scarborough was not protected from unfair dismissal because his annual rate of earnings exceeded the current high income threshold of $138,900 and his employment was not covered by a modern award.
[4] Mr Scarborough contended that while his annual rate of earnings exceeded the high income threshold, he was covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) and as a result of s.382(b)(i) of the FW Act, he is a person protected from unfair dismissal.
[5] The basis of Mr Scarborough’s contention that he was covered by the Manufacturing Award was:
• That the proper construction of the coverage clause of the Manufacturing Award, clause 4.1, required the Commission to determine his industry and occupation when determining whether he was covered by the Award.
• For the purposes of clause 4.1 of the Manufacturing Award, it was uncontroversial that Sandfire is located in Australia and is an employer in the sense that it employs people as employees.
• The operational duties, or work he performed when “on the tools” fell within the meaning of the term “Manufacturing and Associated Industries and Occupations” by virtue of clauses 4.9(a)(iii) and 4.10(a), (b), (c), (i), (s) and (cc) of the Manufacturing Award.
• Although Sandfire does not operate within an industry as listed in clause 4.9(a)(i) and (ii) of the Manufacturing Award, a significant aspect of his role was to repair, recondition, maintain, test and fault find plant and equipment which fell within the term “Manufacturing and Associated Industries and Occupations” as defined in the Manufacturing Award.
• The supervisory duties he performed were in, or in connection, or incidental to the maintenance occupations of the crew and as such fell within the term “Manufacturing and Associated Industries and Occupations” by virtue of clause 4.9(a)(ix) and 4.10(a), (b), (c), (i), (s) and (cc) of the Manufacturing Award. This was further supported by the classification structure in clause B.2.3 and B.3.2 of Schedule B of the Manufacturing Award.
• He was a Supervisor Level I as per clause B.2.3 and B.3.2(a)(ii) of Schedule B of the Manufacturing Award and thus a person protected from unfair dismissal.
Decision under appeal
[6] In the Decision, the Commissioner set out the Manufacturing Award’s coverage clause. He also set out the coverage clause, classification clause and the classification descriptors from the Mining Industry Award 2010 (the Mining Award), presumably because Sandfire had contended that if Mr Scarborough was covered by a modern award it would be the Mining Award. Sandfire noted its contention that Mr Scarborough was excluded in any event, because he was a Supervisor.
[7] The Commissioner rejected Mr Scarborough’s proposition that the coverage clause of the Manufacturing Award links coverage to the industry and occupation of the employee, concluding instead its effect “is to define the industries (or parts) of industries in which the employer must operate so as to be covered by the Manufacturing Award, provided the additional requirements of that clause are met (e.g. role inclusion in the classification structure). 3”
[8] In finding Mr Scarborough was not covered by the Manufacturing Award, the Commissioner concluded:
“…Sandfire does not operate in the Manufacturing Industry. If Sandfire was solely or principally involved in the provision of the services described by Clause 4.9(a)(iii) then this would lend support to Mr Scarborough’s argument, but this is not the case. In my view Sandfire operates in the Mining Industry and the maintenance services provided by Mr Scarborough and his team were incidental to the operation of the mine and not in connection with or incidental to any of the industries described in Clause 4.9(a) of the Manufacturing Award. 4”
[9] The Commissioner was satisfied that the Sandfire operation fell within the coverage clause in the Mining Award, noting:
“the provision of maintenance services in which Mr Scarborough was involved appears to fall within clause 4.2(c) which covers ‘the servicing, maintaining (including mechanical, electrical, fabricating or engineering) or repairing of plant and equipment used in the activities set out in clauses 4.2(a) to (d) by employees principally employed to perform work on an ongoing basis at a location where the activities described above are being performed’.”
[10] As to whether Mr Scarborough had been employed at the Supervisory level, the Commissioner concluded:
“Based on the information before me, including the contract of employment and the position description, and witness statements, it appears that Mr Scarborough was clearly employed at a Supervisory level, as opposed to undertaking maintenance work and providing some supervision. 5”
[11] The Commissioner referred to a number of previous decisions of the Commission which he said confirmed that the classification structure in the Mining Award does not cover Supervisory roles.
[12] Having found that Sandfire does not operate in an industry covered by the Manufacturing Award and that Mr Scarborough’s role did not fall within the Mining Award, the Commissioner concluded he was not covered by a modern award.
[13] The Commissioner dismissed Mr Scarborough’s application because he was satisfied Mr Scarborough’s annual earnings were greater than the high income threshold and he was not covered by an enterprise agreement or modern award.
The nature of appeals
[14] This appeal is one to which s.400 of the FW Act applies. Section 400 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.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[15] In the Federal Court Full Court decision 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(1) as “a stringent one”. 6
[16] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 7. 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. 8
[17] 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. 9 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.10
Grounds of appeal
[18] Mr Scarborough’s Notice of Appeal identified four grounds of appeal, that the Commissioner
1. Erred in law by applying the wrong test to determine whether an employer falls within a particular industry.
2. Erred in law by failing to provide adequate reasons why the Respondent did not fall within the scope of clause 4.9(a)(ix) of the Manufacturing Award.
3. Erred in law by incorrectly interpreting clause 4.1 of the Manufacturing Award.
4. Made a significant error of fact by finding that the Respondent did not fall within the scope of clauses 4.9(a)(iii) and clause 4.9(a)(ix) of the Manufacturing Award.
[19] In advance of the hearing before us an Outline of Submissions had been filed on behalf of Mr Scarborough. In those submissions the grounds of appeal were recast and divided between what were said to be grounds related to the public interest, and the charge that the Commissioner made a significant error of fact. In essence, the grounds of appeal focus on paragraph [31] of the Decision.
[20] The significant error of fact made by the Commissioner was said to be his finding that Sandfire was not within the scope of clause 4.9(a) of the Manufacturing Award because it was against the incontrovertible evidence before him and resulted in Mr Scarborough being denied an opportunity to have the merits of his unfair dismissal application being heard and determined in accordance with the FW Act.
[21] In his Notice of Appeal, Mr Scarborough submitted that it is in the public interest for the Commission to grant his permission for the appeal because:
1. The appeal raises issues of importance and general application in relation to:
a) The correct interpretation of clauses 4.1, 4.2, 4.9(a)(iii), and 4.9(a)(ix) of the Manufacturing Award;
b) Ensuring that the decision appealed against does not create a precedent for the Commissioner’s “solely or principally” test where the correct test for determining an employer’s industry is the substantial character test.
2. The decision appealed against manifests injustice because the Commissioner did not provide adequate reasons for why the Respondent did not fall within the scope of clause 4.9(a)(ix) of the Manufacturing Award.
3. The decision appealed against also manifests injustice because the Commissioner made findings of fact which were contrary to the incontrovertible evidence that was before him.
[22] In the submission filed in advance of the hearing before us, the public interest considerations were rephrased as follows:
• If the Commissioner’s “solely or principally” test is allowed to stand it will affect the public in two ways:
o It may change the award coverage of a large number of employers and employees in Australia because an employer and an employee may currently fall within a particular industry (and in turn, a particular modern award) under the ‘substantial character’ test, but may not fall within that industry (or modern award) if the test changes to the Commissioner’s “solely and principally” test; and
o The Commissioner’s “solely and principally” test may have a negative impact on the demarcation lines in union eligibility rules at large, because it may impact on how to interpret a union’s eligibility rule where that eligibility rule is an industry rule.
• The Commissioner did not address the argument that Sandfire fell within the scope of clause 4.9(a)(ix) of the Manufacturing Award thereby offending the public interest by failing to take into account the merits of the case before him.
• The incontrovertible evidence was that a substantial character of Sandfire’s enterprise was within the scope of clause 4.9(a) of the Award and if, at the hearing of the merits of the appeal, the Commission accepts Mr Scarborough’s argument on this point, then it would mean the Commissioner wrongly denied him the opportunity to have the merits of his unfair dismissal application heard and determined. It is plainly against the public interest to deny members of the public the right to exercise their rights under the FW Act.
[23] As regards the third ground of appeal, that the Commissioner erred by finding that clause 4.1 of the Manufacturing Award required a consideration of the industry of the employer, it was submitted on behalf of Mr Scarborough that this alleged error alone is probably not significant enough to attract the public interest because Clause 4.2 of the Manufacturing Award requires consideration of the industry of the employer in any event.
[24] At the hearing before us, it was submitted on behalf of Mr Scarborough that Clause 4.9(a)(ix) of the Manufacturing Award considers someone falling within part of an industry, and while one of the characters of Sandfire’s enterprise was in the mining industry, another character was in the maintenance industry. The resultant question of fact for the Commissioner was whether that character was a substantial one. It was submitted that the Commissioner did not address this question at all and this led him into error.
[25] We are not persuaded the grounds of appeal give rise to a House v King 11 error.
[26] Firstly, a fair reading of paragraph [31] of the Decision indicates that Commissioner considered the contentions of Mr Scarborough 12, together with the contentions and undisputed evidence of Sandfire13 and reached the conclusion that Sandfire does not operate in the Manufacturing Industry. We are not satisfied that the Commissioner erred in this conclusion. Once he had made this finding, it was not necessary for him to deal further with Clause 4.9 of the Manufacturing Award, the effect of which he had earlier addressed14.
[27] Secondly, the Statement “If Sandfire was solely or principally involved in the provision of the services described by Clause 4.9(a)(iii) then this would lend support to Mr Scarborough’s argument” is no more than a statement of the obvious. It does not amount to the Commissioner establishing a “solely or principally” test.
[28] Finally, it is evident that in finding the maintenance services provided by Mr Scarborough and the team he supervised, were “incidental to the operation of the mine”, the Commissioner did not consider them to be of a “substantial character”. We are not satisfied that the Commissioner erred in this conclusion.
[29] However, at this point we are only concerned with whether we should grant permission to appeal.
[30] We reject the submissions in relation to the enlivening of the public interest. Mr Scarborough’s matter does not give rise to issues of importance and or general application. Further, having considered all that has been put before us, we are not satisfied that this matter:
a) is in a class where there is a diversity of decisions at first instance so that guidance from an appellate bench is required;
b) is one 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.
Conclusion
[31] We are not persuaded that Mr Scarborough has established that it is in the public interest to grant permission to appeal. The Commissioner approached the task before him in an orthodox manner and we are not persuaded that there is an arguable case that the Decision or Order were attended by any error of principle or any significant error of fact.
[32] Section 400(1) of the FW Act provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. We do not consider that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.
VICE PRESIDENT
Appearances:
Mr C Fogliani for Mr Scarborough.
Mr G Smith for Sandfire Resources NL T/A Sandfire Resources NL.
Hearing details:
2017.
Sydney:
April, 3.
1 PR590288.
2 [2017] FWC 947.
3 [2017] FWC 947, [28].
4 [2017] FWC 947, [31].
5 [2017] FWC 947, [35].
6 (2011) 192 FCR 78 at [43].
7 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) 192 FCR 78 at [44] -[46].
8 [2010] FWAFB 5343 at [27], 197 IR 266.
9 Wan v AIRC (2001) 116 FCR 481 at [30].
10 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
11 [1936] HCA 40; (1936) 55 CLR 499, (17 August 1936).
12 [2017] FWC 947, [29].
13 Ibid at [30].
14 Ibid at [28].
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