Ms Mariana Baptista v Bearing Point Pty Ltd
[2013] FWCFB 10126
•23 DECEMBER 2013
[2013] FWCFB 10126 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Bearing Point Pty Ltd
(C2013/5334)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 23 DECEMBER 2013 |
Appeal against decision in transcript of Deputy President Booth at Sydney on 5 July 2013 and order dated 10 July 2013 in matter number U2013/7016.
[1] This decision concerns an appeal made by Ms Baptista against a decision dismissing her application for an unfair dismissal remedy. Deputy President Booth found that the appellant was not a person protected from unfair dismissal. Accordingly, the Fair Work Commission (the Commission) had no power to entertain her application. An order reflecting that decision was subsequently issued. 1
Background and relevant legislation
[2] The appellant made an application under s.394 of the Fair Work Act 2009 (the Act) in which she identified two respondents, Bearing Point Services Pty Ltd and Pactera Technology Pty (Pactera) as having been her employers. The application indicated that she had been engaged on 23 May 2012 and dismissed on 8 February 2013. Bearing Point Pty Ltd (Bearing Point) filed an employer response identifying itself as being the employer and recording that Ms Baptista had been terminated due to her poor performance. It raised a jurisdictional objection to the matter proceeding on the ground that Ms Baptista was not covered by a modern award, that no enterprise agreement applied to her employment and that her annual rate of earnings exceeded the high income threshold. These grounds relied on s.382 of the Act which provides for when a person is protected from unfair dismissal. That section reads as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[3] An appeal under s.604 of the 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. There is no right to appeal, rather an appeal may only be made with the permission of the Commission. Section 604(2) deals with permission to appeal:
“(2) Without limiting when FWC may grant permission, FWC must grant permission if FWC is satisfied that it is in the public interest to do so.”
[4] However, in the case of appeals such as this which concern an unfair dismissal application, different requirements are prescribed by s.400 of the Act. That section provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWC under this Part unless FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by 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.”
[5] As is clear from the terms of s.400 an appeal may only be made with the grant of permission by the Commission and when we consider it is in the public interest to do so. Section 400 manifests an intention that the threshold for a grant of permission to appeal is higher than appeals which are to be considered solely by reference to s.604. About this Justice Buchanan in the Federal Court judgement in Coal & Allied Mining Services Pty Ltd v Lawler characterised the requirements of s.400 as “more stringent” than the general right of appeal under s.604. 2
[6] The appeal proceeds by way of rehearing however, our powers are only exercisable if we are persuaded the Deputy President was in error in her decision making process. 3 Further, as s.400 makes clear, if the error is one of fact then it must be a significant error of fact. The grounds of appeal appear to raise three types of errors said to have been made by the Deputy President. Errors of law with respect to the construction the Deputy President gave to the terms of a modern award, errors of fact in respect to findings made on the basis of documentary evidence and submissions of the parties and errors in the exercise of discretionary considerations.
Evidence and submissions before the Deputy President
[7] Ms Baptista represented herself before the Deputy President and Bearing Point was represented by two of its employees. One of those persons, Mr Oldham, indicated that he had been admitted as a solicitor in the state of New South Wales.
[8] The hearing of the respondent’s jurisdictional objections was originally listed for 28 June. Ms Baptista applied for an adjournment of that hearing on the basis she wished to obtain legal advice. The adjournment was granted and the matter relisted for hearing on 5 July 2013.
[9] A reading of the transcript of the hearing before the Deputy President reflects that she went to some lengths to explain to the parties, and Ms Baptista in particular, the issues that were raised by the employer’s jurisdictional objection and the manner in which she would consider those issues. The Deputy President commented that Ms Baptista had the benefit of the respondent’s submissions for in excess of two weeks prior to the hearing. Ms Baptista had prepared written submissions but only provided them to the Deputy President and the respondent on the morning of the hearing. Despite the respondent expressing concern about that it did not apply for an adjournment.
[10] Both Ms Baptista and Bearing Point made oral submissions to the Deputy President and addressed the written submissions each had filed. Ms Baptista indicated to us in the appeal she had received legal assistance in the preparation of those submissions. She gave oral evidence and was cross-examined by Mr Oldham.
[11] The Deputy President had before her Ms Baptista’s originating application under s.394. The grounds of appeal refer to information in the s.394 application which it is said the Deputy President failed to take into account and the written submissions on appeal also refer to this issue. The s.394 application contained lengthy submissions together with extracts of information from corporate websites and copies of job advertisements. We observe that a significant amount of the content of that document related to matters not relevant to the issues before the Deputy President. However, one observation should be made about the originating application. Nowhere within it did Ms Baptista identify any modern award or enterprise agreement as either covering or applying to her employment.
[12] Ms Baptista commenced employment on 23 May 2012. She had been offered employment by way of a letter of offer and employment agreement dated 24 April 2012. We should here note that it was not suggested by either party that there was any applicable enterprise agreement. The offer of employment, which was on Bearing Point letterhead and signed by a Mr Meeks, Chief Operating Officer, was accompanied by an employment agreement. Ms Baptista signed a copy of that document on 29 April 2012. In doing so she acknowledged that the terms and conditions of employment were as outlined in the offer of employment and employment agreement.
[13] Ms Baptista was appointed to a position of Senior Consultant. She was to be paid a total remuneration package of $150,000 per annum with a monthly salary component of $11,560.78. The salary paid to Ms Baptista equated to an annual rate of earnings in excess of $138,000 per year. We note that at the time her employment was terminated the high income threshold, as referred to in s.382(b)(iii) was $123,300. Copies of monthly pay slips for November 2012 to February 2013 were before the Deputy President. We observe that in those monthly pay slips the position of Ms Baptista is described as “Senior Consultant”.
[14] On its business letterhead Bearing Point describes itself as Management and Technology Consultants. In the hearings before the Deputy President it said it was a professional services firm. It develops strategic business solutions for clients, undertakes consulting assignments and designs, and implements business solutions. It enters into a consultancy arrangement with the client and it then identifies employees of Bearing Point who would best be able to provide services to the client. Most of its expertise is in and around large-scale projects where information technology will be utilised but it is not what that technology is, or should be, that is the core of its role. Its business is not about advising on the hardware or writing software data and instructions. It puts a team on a project which will need to have sufficient experience to be able to provide advisory services, project guidance and leadership to the client. It is not a recruitment agency or outsource provider.
[15] Bearing Point had originally been “born out of KPMG”, a large accounting firm. There had been a local management team buy-out. Although in recent times it was in the process of an acquisition and merger with Pactera, that transaction had only been executed in part and not finalised. The employer of Ms Baptista was, at all relevant times, Bearing Point.
[16] Bearing Point relied on a position description for the job of Senior Consultant which, it submitted, described Ms Baptista’s duties. Ms Baptista said she had not been provided with that position description although we note the Deputy President found it provided a good indication of her role. We note that before us, Ms Baptista said it did describe her main duties and also note that it is consistent with the more detailed description of those duties Ms Baptista gave in her s.394 application.
[17] The main activities of a Senior Consultant included designing and developing high-quality business solutions and other projects “often utilizing SAP skills”, evaluating business needs of customers, liaising with business stakeholders to understand and map business processes, planning and coordinating resources to complete project implementation, performing analysis to identify potential value creating opportunities, developing conclusions and presenting key findings at an executive level. The experience required is described as between six and ten years experience in relevant specialised business areas or consulting with a minimum of two years experience in consulting engagement, project management or other business and resource management. Experience in a team environment is referred to as is the fact that the appointee may hold an MBA.
[18] When Ms Baptista commenced employment she was assigned to a project for British American Tobacco (BAT) which was a long term client of Bearing Point. This was the only project she worked on during her employment. The project related to the impact on BAT of the introduction of legislation, the Tobacco Plain Packaging Act 2011 requiring, as the name suggests, the plain packaging of cigarettes. We understand there was a legal challenge in the High Court of Australia concerning aspects of that legislation initiated by British American Tobacco Australasia Limited and others. 4 The challenge was not successful.
[19] Prior to the publication of the High Court judgment, Ms Baptista was working on a number of scenarios in relation to the impact there would be on the business of BAT and its stakeholders. She had worked on launch volumes, production planning, raw material requirements and inventory projections. She had extracted information from the client’s enterprise resource planning (ERP) systems, from subject matter experts and had analysed and modelled that information. She, together with the project leader, reported to the BAT Board to enable it to make decisions about production distribution and backup plans. After the High Court outcome was known, she undertook further analysis through the ERP and meetings with plants in Asia and the Pacific were undertaken. She was responsible for the modelling and preparation of material to be presented in meetings, to run meetings and provide information, to issue recommendations in respect of the Australian stock transition and production plans. She was then given responsibilities with respect to the return of branded goods, the destruction of them and the reimbursement of customers. 5
[20] Ms Baptista said that her position was not that of a Senior Consultant (despite the employment agreement for that position being signed by her). She said that she had been made an offer by a recruitment agency at about the same time for a position as a Demand Planner. She referred to an email about this position she had received from a recruitment consultancy firm. No response to that email from Ms Baptista was identified or referred to. In respect to a Demand Planner position, Ms Baptista also relied on an email sent to her in January 2012, some 4 months prior to the offer for the Senior Consultant position. We note that in January 2012, Ms Baptista was in negotiations about employment. To further complicate the submission made by Ms Baptista she said that she did not ever start in the position of a Demand Planner as there was already another person in that role. In our opinion, the evidence before the Deputy President was that the only position offered and accepted was that of a Senior Consultant.
[21] Ms Baptista challenged the accuracy of her role being described as “Senior” and submitted that her duties, responsibilities and qualifications were expressly covered by either the Professional Employees Award 2010 6 (Professional Employees Award) or the Clerks - Private Sector Award 20107 (Clerks Award).
[22] Ms Baptista did not have an MBA or any other post tertiary qualification. She said she had tertiary qualifications recognised in Australia under a skilled migration assessment allowing her to work as a business and information professional. She was accredited in the use of SAP which we understand to be a reference to systems analysis and programme development. This is a form of enterprise software developed by a German software corporation known as SAP AG.
[23] Ms Baptista annexed a copy of her resume to her written submissions before the Deputy President. In it she refers to her employment with Pactera between May 2012 and March 2013 and describes the position she held as “Business Analyst (Senior Consultant)”. No mention is made of Bearing Point. She lists the key achievements and experience in that job as leading the development of business scenarios for BAT following the introduction of plain packaging legislation and facilitating the business decision-making process. She also lists spearheading the organisational transition from branded to plain packaging which effectively minimised stock losses and devising and implementing a range of effective systems for the timely delivery of information regarding branded product returns.
[24] Ms Baptista submitted that the respondent, without making it clear whether she meant either Bearing Point or Pactera or both, was in the information technology industry as that term is used in the coverage clause of the Professional Employees Award. Alternatively, she submitted her position was properly classified at level B.1.9 in Schedule B of that award. In the further alternative, Ms Baptista submitted she had been covered by the Clerks Award at the classification Clerk Level 5 in Schedule B to that award.
[25] Finally, Ms Baptista submitted that if it was found that she was not covered by any modern award then her annual rate of earnings was below the high income threshold.
The Deputy President’s decision
[26] The Deputy President found that Ms Baptista had been employed by Bearing Point in the position of a Senior Consultant. She found that Bearing Point was a management consultant providing consultancy services to large corporate clients. Bearing Point’s employees are deployed in teams to undertake projects for those clients. For the entirety of Ms Baptista’s period of employment she was deployed in a team on a project for the client BAT. The project she was engaged on concerned the supply chain for products of BAT in the context of their having been market disruption due to legislation implementing plain packaging for cigarettes in Australia. Ms Baptista was an ERP specialist and had particular expertise in SAP software. She earned $11,560.78 gross plus superannuation each month and that equated to an annual rate of earnings of $138,729.36. The Deputy President found the annual rate of earnings to be in excess of the high income threshold.
[27] The Deputy President next found that neither Bearing Point as an employer, nor Ms Baptista as an employee, came within the provisions of clauses 4.1 or 4.2 of the coverage clause of the Professional Employees Award. She found specifically that Bearing Point was not principally engaged in the information technology industry. It was engaged in management consultancy activities. Referring to clause 4.1 of the Professional Employees Award, the Deputy President said that as Bearing Point was not performing professional engineering or professional scientific duties she did not need to go to the classification in Schedule B. 8
[28] Next the Deputy President turned to the coverage clause in the Clerks Award. She noted that it provides that the award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work including administrative duties of a clerical nature and to those employees. She considered the work that Ms Baptista had undertaken and referred to the relevant approach to be applied when considering whether a person is employed under a classification within an award. She referred to the “principal purpose test”. The Deputy President concluded that Ms Baptista was not performing work of the kind covered by the Clerks Award.
[29] The Deputy President dismissed the s.394 application.
The grounds of appeal and procedural rulings
[30] Ms Baptista represented herself on the appeal. She had previously requested that she be provided with the assistance of an interpreter at the appeal hearing. That was arranged for her. Also, prior to the hearing, Bearing Point had sought and been granted permission to be represented by a legal practitioner. That matter was dealt with in advance of the appeal hearing so that each party knew the outcome of the application. In making that ruling we decided, consistent with s.596(2)(a) of the Act, and considering the matters likely to be raised in the appeal, that it would be dealt with more efficiently if the respondent was represented. We took into account the fact that Mr Oldham, who had appeared before the Deputy President, was no longer employed by Bearing Point and the company had no appropriately trained in-house industrial relations employees. Jurisdictional considerations were raised in the appeal grounds and we considered we would be aided by a legal practitioner addressing those grounds. We took into account the fact that Ms Baptista was not legally represented (although she had indicated, on a number of occasions, she was seeking legal advice). The extensive documentation Ms Baptista filed and her wide ranging submissions also suggested to us there would be a need to address the issue about what was properly before the Deputy President and what was not. It seemed likely Ms Baptisa held a view that far more was in evidence than the marked exhibits would establish.
[31] Two further procedural matters arose at the commencement of the appeal hearing. The first concerned the date the appeal was filed with the respondent submitting it was one day out of time. It opposed an extension of that time. The second was an application by Ms Baptista for an adjournment of the hearing. In respect to the time point we have decided to extend the time for filing. The delay is very short and the appellant’s explanation for it acceptable. In any event, we note that an order dismissing the s.394 application was issued several days after the decision and the notice of appeal was filed within 21 days of that order. 9
[32] The application for an adjournment of the appeal was opposed by the respondent. Ms Baptista made the application on the basis she had obtained the services of a solicitor who would represent her on a pro bono basis. That had occurred two working days prior to the hearing. No notice of the adjournment application had been given to us or the respondent. Ms Baptista was unable to indicate any particular time the solicitor she referred to would be able to appear before us. We were given a copy of a document the solicitor had provided to Ms Baptista and it was apparent that it was not an offer to appear on a pro bono basis but a standard costs agreement albeit it was suggested that a deferred fee arrangement may be able to be entered into. We took into account the fact the hearing date for the appeal had been notified on 9 August identifying the hearing date for 22 October 2013. We were not persuaded that the adjournment should be granted.
[33] We refer to the notice of appeal. It sought permission to appeal on the basis that the matter raised issues of importance and general application particularly in respect to the coverage of awards.
[34] It pleaded that the Deputy President had made significant errors of fact in finding that Ms Baptista was not covered by the Professional Employees Award, in ruling that the respondent was not engaged in the information technology industry and that Ms Baptista’s annual rate of earnings exceeded the high income threshold.
[35] A further ground of appeal was that Ms Baptista had not been given an opportunity to respond to evidence or present or highlight relevant evidence in her possession. The notice of appeal gave a number of examples of documents in the appellant’s possession that she would have presented if she had been given an opportunity to do so.
[36] The notice of appeal pleaded that the Deputy President had not given guidance to the appellant when presenting her case nor had proper enquiries been made of her in relation to the industry of Bearing Point. Another ground was that the appellant had been placed at a procedural disadvantage in the hearing as the respondent had not physically attended the hearing but had participated by telephone. It was also pleaded that the Deputy President had not provided adequate reasons for her decision.
[37] We note that the grounds do not assert any error in the finding that the Clerks Award did not cover Ms Baptista nor any challenge to the Deputy President proceeding on the basis that Ms Baptista had been employed by Bearing Point and in the position of a Senior Consultant.
[38] Despite there being no express ground relating to the finding that Bearing Point was the employer, Ms Baptista referred in her oral and written submission to Pactera. Although it was not clear exactly what point she was seeking to make it seems it was that Bearing Point was a company associated with Pactera and that Pactera was in the information technology industry. Even if that was so it is not apparent how the appellant asserts that is relevant to the application of s.382 of the Act. The respondent submitted that there was no evidence before the Deputy President, and there is no evidence before this Full Bench, about any relationship between these companies. It submits that on the evidence and submissions before the Deputy President the only finding she could make was that, at all relevant times, the employer of Ms Baptista was Bearing Point. The Deputy President did not need to make any findings about Pactera. We agree with this submission.
[39] We turn to the challenge to the finding that Ms Baptista’s annual rate of earnings exceeded the high income threshold. In reaching that finding the Deputy President referred to the Full Bench decision in Zappia v Universal Music Australia Pty Limited T/A Universal Music Australia. 10 She correctly identified the question to be asked consistent with that decision and the terms of s.382(b)(iii). On the documentary evidence before the Deputy President, comprising the salary referred to the contract of employment and the monthly payment slips, the finding was clearly correct. No appealable error is identified by this ground.
[40] We next turn to the finding that the appellant was not covered by the Professional Employees Award 2010. We should reproduce the coverage clause of the award. It is in these terms: 11
“4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are covered by the classifications in Schedule B—Classification Structure and Definitions of the award and those employees.
4.2 This award covers employers throughout Australia principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry and their employees who are covered by the classifications in Schedule B.”
[41] It is apparent from the terms of the clause it operates by reference to both the industry of the employer and the occupation of employees. We deal with clause 4.1 first. This is expressed by reference to the duties being undertaken by employees. We have earlier indicated that the Deputy President, in her reference to this clause, said that having found that Bearing Point was not performing professional engineering or professional scientific duties she did not need to consider the classification provisions. We should indicate that although we reached the same conclusion about this subclause it is for reasons that differ to the Deputy President’s. In our opinion, what the clause requires, is consideration of whether an employer has employees performing professional engineering and professional scientific duties (as defined by the award) and who are in classifications in Schedule B. That question is not answered by considering if the employer is performing those duties.
[42] The terms “professional engineering duties” and “professional scientific duties” are defined in clause 3. Professional engineering duties means “duties carried out by a person in any particular employment, the adequate discharge of any portion of which duties requires qualifications of the employee as (or at least equal to those of) a graduate member of Engineers Australia”. Professional scientific duties means “duties carried out by a person in any particular employment, the adequate discharge of any portion of which duties requires academic qualifications of the employee as specified in the academic schedule below”. Thereafter the award sets out an academic schedule comprising paragraphs (a) to (g) each containing particular qualifications. There was no suggestion that Ms Baptista could have properly been classified as performing any of the duties nor having any of those qualifications. As she was not performing these duties there is no need to consider Schedule B. Clause 4.1 did not operate in a way to make the award cover her employment.
[43] We turn to clause 4.2. That clause required the Deputy President to consider if Bearing Point was principally engaged in the information technology industry. That industry is defined in clause 3.3 in these terms:
“3.3 Information technology and telecommunications services stream
information technology industry means:
(a) the design and manufacture of computers and computer peripherals;
(b) the design and manufacture of telecommunications equipment;
(c) the design and manufacture of computer software;
(d) computer system installation, repair and maintenance;
(e) computer consultancy services;
(f) computer programming;
(g) system analysis services;
(h) the design, development and maintenance of online internet architecture and the facilitation of online content management; or
(i) activities which are incidental, ancillary or complementary to the activities set out in this definition.”
[44] Ms Baptista relied on paragraph (e) of the definition. There seemed to also be a suggestion that Bearing Point was in the business of providing system analysis services. However, no attempt was made to identify any evidence which would support that submission.
[45] Ms Baptista concentrated on identifying the occasions when the words “information technology” were to be found in a wide range of documents prepared or published by Bearing Point and Pactera. She did not concentrate on the need for Bearing Point to be principally engaged in the information technology industry as defined by the award.
[46] We are not persuaded the evidence supports a finding that Bearing Point was in the relevant industry. We have set out earlier, particularly at paragraph [14] the business of Bearing Point. We also observe that the duties undertaken by Ms Baptista, which we have referred to in paragraphs [17], [19] and [23] are consistent with Bearing Point’s description of its business. We agree with the respondent that the reference to computer consultancy services is properly to be read as consulting about the computer, i.e. the hardware that a client may need or about that which it has. Reading the definition clause as a whole, it is apparent that it commences with design and manufacture of hardware and software, proceeds to cover its installation and maintenance and then to the advice about which computers are appropriate and the programming of those computers. The next subclauses refer to advice about software appropriate for the client to be used. Similarly, programming and analysis is about the computer comprising the hardware and the software and what is appropriate for the business needs of a client. This was not the business of Bearing Point much less was it principally engaged in those activities.
[47] We have not overlooked subclause (e) of the definition. No submission was made to the Deputy President or us about that subclause. There is some tension between its terms and the requirement, referred to in clause 4.2, for an employer to be “principally engaged” in the information technology industry. As we have earlier found Bearing Point was not principally engaged in that industry. It would be a remarkable outcome if a finding that Bearing Point did undertake activities complementary to subclause (e), should result in a finding it was in the industry. There was no suggestion before the Deputy President that such a construction of the relevant coverage clauses of the award was open. No reference was made to the history of the making of the award nor the predecessor awards which had operated prior to it coming into effect.
[48] We should briefly refer to the issue about coverage by the Clerks Award. As we have earlier indicated no ground in the notice asserted that the Deputy President was in error in relation to her finding that Ms Baptista was not covered by the Clerks Award. However, the appellant’s written submissions did assert that it was an error of law for the Deputy President to have found that the Clerks Award did not cover her employment. That is all that was said. It was not developed in any way in either the appellant’s written or oral submissions. It is sufficient for us to find that the Deputy President was not in error with respect to this finding. She correctly applied the approach to be taken to ascertaining if an award covered an employee and properly applied the evidence to that consideration. She was correct to find that the principal purpose for which Ms Baptista was engaged was not to perform clerical work.
[49] One ground of appeal suggests that Ms Baptista was covered by the Professional Employees Award in accordance with clauses 4.9 or 4.10. It is put in terms that she “could” have been covered by virtue of those provisions. Other than asserting that ground it was not developed in any way nor were any particulars given. In her written submissions before the Full Bench, other than asserting an error of law in this respect, no more was said in support of it. No consideration was given to the reasons these clauses, which are reasonably standard ones in modern awards, had been inserted into those awards. It is sufficient to dispose of this ground to indicate we were not persuaded that Bearing Point could properly be categorised as a labour hire company or providing on hire employees as those terms are used in clauses 4.9 and 4.10. 12 Much more would need to be said to seriously entertain this submission.
The numerous procedural fairness grounds
[50] The appellant challenges the manner in which the Deputy President conducted the hearing and asserted that she was denied an opportunity to put her case. She submits she was not given adequate guidance and meaningful opportunities prior to the Deputy President announcing her decision. She identified the fact she was from a non-English-speaking background and not legally educated with fewer resources than the respondent.
[51] We have considered the manner in which the Deputy President conducted the hearing and are satisfied that procedural fairness was accorded to the appellant. About this ground of appeal we adopt the respondent’s written submissions at paragraphs 19 - 28. The Deputy President was required to give the applicant a fair and reasonable opportunity to present her case. That opportunity was given. She was not required to ensure that Ms Baptista took the best advantage of that opportunity. 13
[52] One aspect of this ground of appeal concerns the appellant identifying a number of documents which she said she was unable to present on the day of the hearing. She said that she would have relied on them had she been given an opportunity.
[53] The first observation we should make about this ground is that the appellant did not seek to tender any documents additional to those which were attached to her s.394 application and her written submissions. No ruling was made refusing to allow the tender of any documents.
[54] The additional documents the appellant identifies as being ones she would have wished to tender before the Deputy President do not appear, in our opinion, to be such that they would have resulted in a different conclusion by the Deputy President. They largely relate to the appellant asserting that Bearing Point is in the information technology industry. It seems that the importance of the documents is due to the term “information technology” appearing in them. No attempt is made to identify the relevance of any of the documents by reference to the definition of the information technology industry in the Professional Employees Award. They appear, to use the respondent’s description of them, to be irrelevant and/or of limited evidentiary or probative value. We are not persuaded that any error is established by this ground.
[55] The next ground of appeal is that the Deputy President did not give adequate reasons for her decision. The obligation to do so was described in the Full Bench decision in Barach v University of New South Wales in these terms:
“... the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.” 14
[56] We have considered the reasons given by the Deputy President and we are not persuaded they are inadequate. It was necessary for her to address the matters contained in s.382 of the Act, consider the evidence and make findings about matters relevant to the application of that section. She was not required to refer to matters raised by the appellant which were not relevant to that task.
[57] The Deputy President gave reasons for each of the findings she made. She cannot be criticised for not having referred to evidence that the appellant said she had, but had omitted to put before the Deputy President.
Conclusion
[58] We have earlier referred to the Deputy President’s consideration of clause 4.1 of the Professional Employees Award. To the extent the question she asked herself did not accurately reflect the correct construction of the award, we have considered whether that is such as to warrant the grant of permission to appeal. We are not satisfied that it does. For the reasons we have given, had the Deputy President properly considered the terms of the subclause she would have arrived at the same conclusion. This error is not of such importance as to warrant a finding that it is in the public interest to grant permission to appeal.
[59] We are not persuaded that the grounds of appeal establish any significant error of fact. The grounds raise no matters of importance or general application. We are not persuaded that the decision of the Deputy President is attended with sufficient doubt such as to warrant its reconsideration, nor are we persuaded that any substantial injustice will result if permission is refused. The grounds of appeal do not enliven the public interest.
[60] The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
M Baptista on her own behalf.
A McNab, of counsel and G Meeks on behalf of the respondent.
Hearing details:
2013.
Sydney.
22 October.
1 PR538798.
2 [2011] FCAFC 54 at [33] and [34], Justices Marshall and Cowdroy agreed.
3 [2000] 203 194, and as applied in numerous Full Bench decisions see eg Gao v Department of Human Services[2011] FWAFB 5605,Tokoda v Westpac Banking Corporation[2012] FWAFB 3995, Carter v Qantas Airways[2012] FWAFB 5776, Curtis v Darwin City Council[2012] FWAFB 8021.
4 [2012] HCA 43.
5 Form 2 page 9.
6 MA000065.
7 MA000002.
8 Transcript of proceedings on 5 July 2013, PN224.
9 See s.598 and rule 12.3.
10 [2012] FWAFB 6108.
11 MA000065.
12 [2009] AIRCFB 865, [2009] AIRCFB 925 and [2009] AIRCFB 945.
13 See Viavattene v Health Care Australia [2013] FWCFB 2532 at [36] - [40], and cases there cited.
14 [2010] FWAFB 3307 at [16].
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