Mr Samuel Streeter v BHP Coal Pty Ltd
[2017] FWCFB 3813
•25 JULY 2017
| [2017] FWCFB 3813 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
BHP Coal Pty Ltd
(C2017/2802)
JUSTICE ROSS, PRESIDENT | SYDNEY, 25 JULY 2017 |
Appeal against Statement - appeal out of time - application to extend time dismissed.
1. Background
[1] On 19 February 2014, Mr Samuel Streeter (the Appellant) made an application for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the BHP Coal Pty Ltd Enterprise Agreement 2004 (the 2004 Agreement). 1 In his application Mr Streeter contended that the BHP Coal Saraj Mine had utilised a number of labour hire employees but had not paid them in accordance with clause 10.2.4 of the 2004 Agreement.
[2] On 2 April 2014 Deputy President Asbury conducted a conference in respect of Mr Streeter’s application. During the course of the conference the Deputy President informed Mr Streeter that she had formed the view that the Commission did not have jurisdiction to deal with the dispute or to grant the relief sought. On 2 February 2015, the Deputy President issued a ‘Statement’ setting out her reasons for the views expressed at the conference. The Deputy President’s conclusions are set out at paragraphs [22] – [30] of the Statement. Relevantly for present purposes the Deputy President states (at [30]) that ‘… the Commission does not have jurisdiction to deal with this matter further’. On 26 May 2017 Mr Streeter filed a Notice of Appeal in respect of the Statement. Permission to appeal is now sought and that is the matter before us.
[3] Rule 56 of the Fair Work Commission Rules 2013 states, among other things, that an appeal must be lodged within 21 calendar days after the date of the decision being appealed against. As we have mentioned, Mr Streeter’s appeal was filed on 26 May 2017, which is some two years and three months out of time. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[4] There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.
[5] The authorities 2 indicate that the following matters are relevant to the exercise of the Commission’s discretion under Rule 56(2)(c):
- whether there is 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
- any prejudice to the Respondent if time were extended.
[6] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.
[7] In relation to the reasons for the delay Mr Streeter referred to the need to make an FOI request in respect of a matter relevant to the dispute and to the impact that the April 2014 conference had upon him. As to the latter matter Mr Streeter says:
‘what … I went through in Brisbane affected me personally and it took some time to get back, focussed on what the real issue was, and the real issue was that these people haven’t been paid.’ 3
[8] Mr Streeter also said that it took him a ‘considerable amount of time’ to get the authorities from the various employees for whom he purports to act. 4
[9] We note that the FOI request was dealt with in September 2015 and that the majority of the documents authorising Mr Streeter to act on behalf of certain individuals were dated July or August 2016. It is apparent these issues only provide a partial explanation for what is an extensive delay.
[10] While we do not doubt that the outcome of the April 2014 conference adversely affected Mr Streeter, we are not satisfied that this provides a satisfactory explanation for the delay in this case. We note that the conference occurred some 10 months prior to the Deputy President’s Statement and that the impact of the April 2014 conference upon Mr Streeter did not prevent him from taking other steps in respect of this matter, including the lodgement of the FOI request and obtaining various authorities from individuals.
[11] We are not persuaded that there is a satisfactory explanation for the delay in this case.
[12] We now turn to the grounds of appeal and the likelihood of one or more of those grounds being upheld if time were extended.
[13] An appeal under s 604 of the Fair Work Act 2009 (Cth) (the FW 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. 5 There is no right to appeal, rather an appeal may only be made with the permission of the tribunal.
[14] We note that BHP Coal characterises the Statement as an expression of opinion resulting from a conference and on that basis contends that it is not a decision for the purposes of s. 604 of the FW Act. We reject that characterisation. While the Statement does not say it is a decision, that is plainly its correct characterisation. It decides a question of jurisdiction.
[15] In a document attached to his Notice of Appeal (marked ‘Item 6’) Mr Streeter identified what are said to be errors in the Deputy President’s Statement. We have considered each of the matters identified by Mr Streeter but in our view none of them raises an arguable case of error warranting correction on appeal.
[16] The central part of the Statement is the Deputy President’s conclusion that the Commission did not have jurisdiction to deal with Mr Streeter’s appeal. The issue on appeal will be whether or not the Deputy President was correct in that conclusion.
[17] We have taken into account the fact that Mr Streeter is a litigant in person and accordingly we have given close consideration to whether the Deputy President’s conclusion on the issue of jurisdiction was correct.
[18] It will be recalled that the application before the Deputy President was for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the 2004 Agreement.
[19] Section 739 of the FW Act provides that the Commission may deal with a dispute in accordance with a term in an enterprise agreement about settling disputes.
[20] There are two reasons why it appears to us that the Deputy President was plainly correct in concluding that there was no jurisdiction to deal with Mr Streeter’s dispute.
[21] First, the 2004 Agreement was replaced by the BHP Coal Pty Ltd Workplace Agreement 2007 (the 2007 Agreement). Once the 2007 Agreement commenced operation the 2004 Agreement ceased to operate, by virtue of s.347(5) of the Workplace Relations Act 1996 (Cth) (the WR Act). Further, s.347(7) of the WR Act provided that:
‘If a workplace agreement has ceased operating under subsection (4), it can never operate again.’
[22] The 2004 Agreement ceased operating well before Mr Streeter filed his dispute application, accordingly the Commission has no jurisdiction to deal with that dispute.
[23] Second, Mr Streeter’s application cannot properly be regarded as a continuation of an earlier dispute under the 2004 Agreement, namely the ‘2007 dispute’. The 2007 dispute is referred to at paragraphs [10] – [14] of the Statement. It is clear that the 2007 dispute was resolved on the basis of the ‘way forward’ document dated 20 February 2008. In any event Mr Streeter was not a party to the 2007 dispute, despite the fact that he may have participated in the AIRC proceedings in relation to the dispute. The parties to the 2007 dispute were BHP Coal Pty Ltd and the CFMEU.
[24] For completeness, we note that the 2007 Agreement was replaced by the BMA Enterprise Agreement 2012 (the 2012 Agreement) and we have considered whether the dispute can be dealt with under the 2012 Agreement. We have concluded that it cannot, because there is no equivalent term of the 2012 Agreement to the clause which is at the heart of the dispute (clause 10.2.4 of the 2004 Agreement).
[25] We have concluded that the appeal has little or no prospect of success.
[26] As to the question of prejudice to the Respondent, BHP Coal submits that it is prejudiced by the substantial delay in bringing the appeal, on the basis that:
(i) business records are requested to be kept for seven years and this matter is over ten years old, which would impact on the respondent’s ability to meaningfully defend itself in the dispute; and
(ii) the documents in relation to this matter are ‘likely to be held on various hard drives on different computers and not all are located in central locations so it would take a significant amount of time for the respondent to gather its necessary material in order to defend the dispute’. 6
[27] We note that there is an evident inconsistency in the points advanced by BHP Coal. Implicit in point (i) is the suggestion that BHP Coal has not retained the records to allow it to defend that dispute, yet point (ii) suggests that the requisite records have been retained, albeit at different locations. We are not persuaded that the Respondent would suffer prejudice if the time to lodge the appeal were extended.
[28] Having regard to all of the relevant considerations we are not persuaded that it is in the interests of justice to extend time to file the appeal. Accordingly we dismiss Mr Streeter’s application to extend time to file the appeal.
PRESIDENT
Appearances:
Mr Samuel Streeter, in person
BHP Coal: Ms Berry, solicitor
Hearing details:
Melbourne;
12 July 2017.
Printed by authority of the Commonwealth Government Printer
<Price code C PR594696>
1 C2014/3123
2 Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000 per Ross VP, Acton SDP and Simmonds C; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per Ross VP, Hamilton DP and Eaves C; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Tokoda v Westpac Banking Corporation [2012] FWAFB 3995; Lesic v No. 1 Riverside Quay Pty Ltd T/A BP Australia [2015] FWCFB 395.
3 Transcript 12 July 2017 at pn [104]
4 In correspondence dated 17 July 2017. Mr Streeter identified a number of items in the Appeal Book which were said to support his explanation for the delay in filing the appeal. We deal with the issues raised at [7]– [9].
5 This is so because on appeal FWA 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
6 Transcript 12 July 2017 at paragraphs [176] – [184]
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