National Electrical and Communications Association v Electrotechnology Industry Group Training Company Ltd

[2021] FWC 6154

[2021] FWC 6154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

National Electrical and Communications Association
v
Electrotechnology Industry Group Training Company Ltd
(C2021/6976)

VICE PRESIDENT HATCHER SYDNEY, 18 OCTOBER 2021

Appeal against decision [2021] FWCA 6239 of Commissioner Johns at Sydney on 12 October 2021 in matter number AG2021/6704 – stay application.

Introduction

[1] The National Electrical and Communications Association (NECA), a registered organisation of employers, has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (FW Act), for which permission is required, against a decision of Commissioner Johns made on 12 October 2021 1 to approve the ETU and Electrogroup Group Training Apprentice Enterprise Agreement 2021-2022 (Agreement). NECA’s notice of appeal contains two grounds of appeal which, in broad terms, are as follows:

(1) The Commissioner erred in finding that the Agreement had been genuinely agreed for the purpose of s 186(2)(a) of the FW Act, in that the Commissioner could not be satisfied on the evidence that the employer under the Agreement, Electrotechnology Industry Group Training Company Ltd (EIGT) had complied with s 180(5) or s 180(2).

(2) The Commissioner denied the NECA procedural fairness by failing to provide the NECA with a copy of all the material provided by EIGT to the Commission for its consideration and determining the matter without giving the NECA an opportunity to make submissions in response to that material or to test EIGT’s evidence.

[2] In its notice of appeal, the NECA contends that permission to appeal should be granted because “The errors made by the Commissioner are jurisdictional errors and there is a public interest in ensuring that the jurisdiction invested in the Commission is properly exercised.”

[3] The NECA has also sought a stay of the decision – in particular a stay of the commencement of the operation of the Agreement – until such time as the appeal is determined, pursuant to s 606(1) of the FW Act. This decision is concerned with the NECA’s stay application. I heard the stay application today on an urgent basis because the Agreement commences operation tomorrow, 19 October 2021. The stay is opposed by EIGT and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which was a bargaining representative for the Agreement.

[4] In support of its application, EIGT relied on a statement of evidence made by Mr Oliver Judd, the Chief Executive Officer of the NECA, of today’s date. The main propositions in Mr Judd’s statement are:

•  EIGT employs about 350 electrical apprentices/trainees and places them with about 60 electrical contractor companies or “host employers”, about 20 of which are members of the NECA;

•  the standard agreement between EIGT and host employers is on a “cost plus” basis, so that where the rates of pay for apprentices have increased, this will be advised to the host employer and the cost of this will be passed on to the host employer;

•  the Agreement contains significantly higher rates of pay; and

•  Mr Judd has been informed by a number of NECA members that they have concerns about the increase in the charge-out rates of EIGT as a result of the approval of the Agreement, they will not pay the increased rates, and as a direct result they will not continue to host apprentices or trainees of EIGT who will therefore likely lose their placements.

[5] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 2 Paragraph [5] of that decision states:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[6] The above passage assumes that the standing of the putative appellant to bring the appeal is not in issue. There will be some cases where it is in issue, in which case it will also be necessary for the applicant for a stay to demonstrate that it has an arguable case, with reasonable prospects of success, that it has the requisite standing. This requires it to demonstrate that it is a “person who is aggrieved by [the] decision” within the meaning of s 604(1).

[7] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 3

[8] In relation to the first limb of Edghill, I consider there is a real issue in this case as to whether the NECA has standing to appeal. The “person aggrieved” test does not require the appellant to have a legal interest in the decision in the appeal; it is sufficient that the appellant have an interest in the appeal beyond that of an ordinary member of the public. 4 The interest must not be that of a mere intermeddler or busybody.5

[9] In this case, the NECA is not bound by the Agreement nor covered by it, it did not act as a bargaining representative in the negotiation of the Agreement, and its notice of appeal does not contend that the decision raises some broader issue of law impacting on the present or future industrial interests of NECA or its members. These matters would suggest that the NECA does not have any interest in the decision beyond that of an ordinary member of the public and is acting as a mere busybody. However, for reasons that are not entirely apparent, the Commission allowed the NECA a limited opportunity to make submissions at first instance, and went on to reject those submissions as lacking any merit in the decision. 6 Because of this last matter, I am satisfied that it is reasonably arguable that the NECA has standing to appeal. I also consider that it is arguable that the indirect interest of some NECA members in the approval of the Agreement via the commercial contracts they have entered into may give them an interest greater than that of an ordinary member of the public. The issue of standing will no doubt receive greater attention at the hearing of the appeal.

[10] I will deal with the issue of permission to appeal and the merits of the two appeal grounds conjointly. The second appeal ground is not reasonably arguable and for that reason would be very unlikely to attract permission to appeal. This is because, being neither a bargaining representative nor a person covered by the Agreement (or any earlier Agreement whose substantive rights might be affected by the Approval of the Agreement), it had no right to be heard and thus no right to be afforded procedural fairness (beyond the right to be heard as to whether it should be heard). 7 The fact that the Commissioner determined to exercise his discretion to hear from the NECA in a limited way pursuant to s 590 of the FW Act did not mean that, as a consequence, the NECA obtained a right to be heard.

[11] As to the first appeal ground, I have heard a sketch of the argument to be presented in the hearing. It is not appropriate to set out my consideration of that argument beyond saying that I am persuaded, albeit by the barest of margins, that the first appeal ground is sufficiently arguable such that it has some prospects of attracting the grant of permission to appeal and being upheld.

[12] I turn to the balance of convenience. The NECA contends that the balance of convenience favours the grant of a stay because, otherwise, the cost of the wage increases provided for by the Agreement will be passed on to some of its members. However, the NECA made no attempt to quantify this, and as a result I have no understanding of what the order of the increase in cost is said to be. Further, the weight to be given to this consideration is, in my view, limited in circumstances where NECA members have apparently voluntarily entered into cost-plus commercial agreements. That is, this is a situation of their own making. The NECA’s case as to the balance of convenience is also at odds with the evidence given in Mr Judd’s witness statement: he says that a number of members have indicated that they will not pay any increased charges from EIGT but will rather terminate their arrangements with EIGT. If so, this indicates that NECA members in fact have a way of avoiding the increased charges if they wish.

[13] On the other hand, a stay will, even if temporarily, deny employees of EIGT the benefits of the legal entitlements, including wage increases, conferred by the Agreement. Further, if the appeal is unsuccessful, EIGT may have to engage in the administratively difficult task of backpaying the employees. Taking these matters into account, I am not persuaded that the balance of convenience favours the grant of a stay.

[14] Because I have not positively been persuaded as to both limbs of the Edghill test, the NECA’s application for a stay is dismissed.

VICE PRESIDENT

Appearances:

J Darams of Counsel on behalf of The National Electrical Contractors Association.
R Carcary on behalf of Electrotechnology Industry Group Training Company Ltd.
A Jacka on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Hearing details:

2021.
Sydney (via telephone):
18 October.

Printed by authority of the Commonwealth Government Printer

<PR735017>

 1   [2021] FWCA 6239

 2 [2000] AIRC 785, Print S2639

 3   Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 4   Tweed Valley Fruit Processors Pty Ltd v Ross and others [1996] IRCA 407, 137 ALR 70 at 90-91; Australian Industry Group [2010] FWAFB 4337, 196 IR 125 at [9]- [12]; Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2013] FWCFB 276, 210 IR 231 at [29]

 5   Right to Life Association (NSW) Inc v Secretary, Department of Human Services [1995] FCA 33, 56 FCR 50 at 65; Cameron Fraser; CFMMEU v JFM Civil Contracting Pty Ltd [2020] FWCFB 4866, 300 IR 122 at [21]-[22]

 6   [2021] FWCA 6239 at [30]

 7   CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940, 246 IR 21 at [16], [75]-[76]; CFMMEU v Mechanical Maintenance Solutions Pty Ltd [2019] FWCFB 3585 at [33]