Mt Arthur Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia, The
[2016] FWCFB 3452
•1 June 2016
| [2016] FWCFB 3452 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Association of Professional Engineers, Scientists and Managers, Australia, The
(C2016/3294)
VICE PRESIDENT CATANZARITI | BRISBANE, 1 JUNE 2016 |
Appeal against decision [2016] FWC 1744 of Commissioner Spencer at Brisbane on 18 March 2016 in matter number U2016/5274.
[1] Mt Arthur Coal Pty Ltd (Appellant) has applied for permission to appeal and appealed a decision 1 issued by Commissioner Spencer on 18 March 2016 (Decision). In that Decision, the Commissioner determined that some of the obligations in s.531 of the Fair Work Act 2009 (FW Act) with regards to notifying or consulting registered employee associations about dismissals were not adhered to by the Appellant. On the same day that the Decision was issued, the Commissioner issued orders2 (Orders) pursuant to s.532 of the FW Act that had the effect of:
- restraining the Appellant from issuing notices of redundancy or offers of redeployment until 5:00pm (AEST) on 22 March 2016;
- compelling the Appellant to hold a meeting with representatives of the Association of Professional Engineers, Scientists and Managers, Australia (Respondent) at or before 10:00am (AEST) on 21 March 2016;
- permitting the Respondent to request any additional information in writing by 3:00pm on 21 March 2016; and
- requiring the Appellant to engage in a teleconference at 10:00am on 23 March 2016 to respond to the Respondent’s queries.
[2] The Appellant acknowledged in its written submissions that it had complied with these orders.
[3] We heard the parties on 19 May 2016 and decided to refuse permission to appeal. At the conclusion of the hearing 3 we informed the parties firstly of our decision and secondly, that the reasons for our decision would be published in due course. These are the reasons for our decision to refuse permission to appeal.
[4] The parties agreed that it must be in the public interest for permission to appeal to be granted. The Appellant submitted that it is in the public interest that permission to appeal be granted in this case on the basis that:
- The appeal raises important questions about the interpretation and application of s.531(2) and s.532 of the FW Act;
- The Decision was contrary to existing Full Bench case authority. In support of this submission the Appellant contended that it is not possible to reconcile the Decision with the decision in CFMEU v Newcastle Wallsend Coal Company Pty Ltd. 4The Appellant contended that this inconsistency is likely to cause confusion and be productive of unnecessary further litigation;
- The Order was made beyond the Commission’s jurisdiction. The Appellant contended that it is undesirable and against the public interest that an order that is beyond the Commission’s jurisdiction remain extant; and
- It is necessary to correct significant errors of law made by the Commission.
[5] In support of these submissions, the Appellant contended that the importance of the Decision is not diminished by the fact that the orders made by the Commission have since been complied with. The Appellant further submitted that it is unfair and prejudicial to the Appellant and otherwise not in the interests of the proper administration of the FW Act for the decision to remain extant, and that the proper way for the Appellant to seek to vindicate its position is by way of seeking permission to appeal.
[6] The Appellant further submitted that it had to comply with the Order and that it would be an odd result if the Appellant were to be punished or lose its rights for complying with the Order. The Appellant submitted that it would have been entirely impractical for it to have sought a stay of the orders pending the appeal on the basis that the Order was issued on Friday 18 March 2016 and required compliance by Monday 21 March 2016.
[7] In response, the Respondent contended that it was not in the public interest to grant permission to appeal on the basis that there is no utility in the appeal. The Respondent submitted that since the Order has no further effect, the appeal can be no more than an attempt to have the Commission rule in a manner that would guide future applications. The Respondent contended that given such applications will always fall to be determined on their own facts, there is no utility in such a course, and therefore no utility in the appeal.
[8] An appeal under s.604 of 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 and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.
[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 6 The public interest is not satisfied simply by the identification of error, or a preference for a different result.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
[10] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 9
[11] 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. 10 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.
[12] We are not persuaded by the Appellant’s submission that it would have been impractical for it to have sought a stay of the Orders pending appeal on the basis that the Orders were issued on Friday 18 March 2016 and required compliance by Monday 21 March 2016. 11 A stay application could have been submitted and the Commission would have considered whether the balance of convenience weighed towards granting a stay. Even if a stay application had been unsuccessful, it is not unfamiliar to the operations of the Commission for a party to receive an expedited hearing following a refused stay application. The Appellant could have sought a stay on Friday 18 March 2016 and proceeded to an expedited hearing the following week. Instead, the Appellant complied with the Orders, did not seek a stay or expedited hearing, and did not lodge an appeal before twenty days had passed since the Orders were issued.
[13] By complying with the Orders, and by deciding to not seek a stay of the Orders or an expedited hearing, the Appellant did not utilise the processes by which the Commission could have intervened to have any practical effect on the Orders. As the Appellant complied with the Orders in the circumstances we have just described, an intervention by us at this stage could serve no utility and serve no purpose other than to speculate on principles of law. Speculating on principles of law is not the role of the Commission. The Commission’s role is confined to considering and dealing with the practical effect of the matter under review. As such, permission to appeal should not be granted when the appeal and its outcome would have no practical utility. This has been confirmed in a number of decisions such as The Maritime Union of Australia v Harbour City Ferries Pty Ltd 12where a Full Bench of the Commission said:
“… there is no utility in allowing permission to appeal given that the Order has expired. Allowing permission to appeal could serve no practical purpose.” 13
[14] We do not consider there to be any utility in allowing an appeal to proceed given that the Order has been complied with by the Appellant and has no on-going operation. As there is no practical utility in the appeal, we are not persuaded that it is in the public interest for permission to appeal to be granted.
Conclusion
[15] Permission to appeal is refused.
[16] As a result, the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr A Duffy, QC for the Appellant.
Mr I Taylor of Counsel for the Respondent.
Hearing details:
Thursday
19 May 2016
Melbourne
1 The Association of Professional Engineers, Scientists and Managers, Australia v Mount Arthur Coal Pty Ltd [2016] FWC 1744.
2 PR578159.
3 PN80 of the Transcript.
4 (1998) 88 IR 202.
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
6 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]
7 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]
8 (2010) 197 IR 266 at [27]
9 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 PN30 of the Transcript
12 [2014] FWCFB 3858
13 Ibid, 28.
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