Nigel Willis v Western Australian Meat Marketing Co-operative Limited T/A Wammco International
[2019] FWCFB 4073
•1 JULY 2019
| [2019] FWCFB 4073 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Greg Rogowsky; Nigel Willis
v
Western Australian Meat Marketing Co-operative Limited T/A WAMMCO International
(C2019/1954)
VICE PRESIDENT CATANZARITI | SYDNEY, 1 JULY 2019 |
Appeal against decision [[2019] FWC 1461] of Deputy President Binet at Perth on 5 March 2019 in matter number AG2018/5604.
Introduction
[1] On 26 March 2019, Greg Rogowsky and Nigel Willis (the Appellants) lodged an appeal against a Decision 1 issued by Deputy President Binet. In the Decision, the Deputy President dismissed the application to terminate the WAMMCO International (Katanning) AMIEU Processing Agreement (2013) (the Agreement).
[2] On 28 May 2019, the Full Bench heard the parties on permission to appeal and the substantive merits of the appeal. Ms K Rogers appeared on behalf of the Appellants and Ms R Harding appeared for the Respondent. Taking into account the complexity of the matter, permission to appear was granted to both parties to enable the matter to be dealt with more efficiently. 2
[3] It is necessary to emphasise the unusual nature of this appeal. The parties are in considerable agreement with respect to the majority of the grounds of appeal, in all but two of the grounds of appeal. The parties agree that the Decision contains both errors of law and significant errors of fact, such that permission to appeal should be granted, the appeal upheld and the Decision quashed.
[4] Accordingly, our decision below gives consideration to each of the grounds of appeal agreed between the parties, prior to turning to the remaining grounds of appeal.
Decision
[5] The Deputy President set out the background to the matter in paragraphs [1] – [12] of the Decision. By way of summary, the Deputy President said:
• Four employees covered by the Agreement have applied to have the Agreement terminated (two of these employees are the Appellants in this appeal).
• The parties to the Agreement are the Western Australian Meat Marketing Co-operative Limited T/A WAMMCO International (the Respondent) and its employees engaged in the processing of meat and associated products at the Respondent’s Katanning plant.
• The Australasian Meat Industry Employees Union (AMIEU) is covered by the Agreement.
• The relevant modern award is the Meat Industry Award 2010 (Modern Award).
[6] The Deputy President then set out the relevant legislative provisions, section 225 and 226 of the Fair Work Act 2009 (Cth) (the Act) and rule 26(2) of the Fair Work Commission Rules 2013 (Cth). 3
[7] The Deputy President’s consideration of the relevant provisions is contained within paragraphs [16] – [48] of the Decision. With the parties in considerable agreement with respect to the appeal, our examination of the grounds of appeal below, including those at which the parties depart, sufficiently addresses the Deputy President’s consideration of the application to terminate the Agreement.
[8] The Deputy President’s conclusions are contained within paragraphs [49] – [57] of the Decision. The Deputy President dismissed the application to terminate the Agreement and said:
“[55] Having considered all the materials before me the Applicants have not satisfied me that it is in the public interest to terminate the Agreement or that it is appropriate to do so taking into account all the circumstances, including the evidence of the views of the Employees, WAMMCO or the AMIEU.”
Appeal Grounds
[9] The appeal involves five main grounds of appeal:
• Appeal Grounds 1, 2, 3 and 5 are concerned with factual findings of the Deputy President that were not reasonably open on the evidence.
• Appeal Grounds 2 and 3 are also concerned with error of law, being that Deputy President has taken into account irrelevant considerations and, in doing so, consideration of the appropriateness test in s 226(b) was misdirected.
• Appeal Ground 4 is concerned with an error of law, being that the Deputy President applied the wrong test and irrelevant considerations were taken into account.
[10] We note that some appeal grounds have sub-grounds contained within them.
Appeal Grounds Agreed Between the Parties
Appeal Ground One
[11] Appeal Ground One is that the Deputy President erred by finding that the “Australasian Meat Industry Employees Union (AMIEU) is covered by the...” Agreement. 4 This finding was not reasonably open to the Deputy President on the evidence, set out in:
• The Form F24B—Application for termination of an enterprise agreement after the nominal expiry date which listed four individual workers as applicants who were represented by the AMIEU in the application; 5
• item 3.1 of the Form F24B—Application for termination of an enterprise agreement after the nominal expiry date, in which the applicants had responded “no” to the question “Are there any employee organisations covered by the agreement?”; 6 and
• the approval decision in The Western Australian Meat Marketing Co-operative Limited (AG2013/7707) [2013] FWCA 5377, which does not list any employee organisations covered by the agreement. 7
[12] Further, pursuant to s 53(2) of the Act, an enterprise agreement will only cover an employee organisation if the Commission has noted in its decision to approve the agreement that the agreement covers the organisation. The decision issued by Commissioner Williams approving the Agreement does not note the AMIEU as covered by the Agreement. 8
[13] This ground of appeal has been made out.
Appeal Ground Two
[14] That the Deputy President erroneously:
• considered the views of the AMIEU;
• considered the views of the AMIEU as distinct from the Applicants;
• taken into account, and/or given weight to, the AMIEU’s views for the purposes of s 226(b)(i); and
• relied on those matters in applying the appropriateness test in s 226(b) in paragraphs [38] and [55].
[15] For the same reasons relied upon in support of Appeal Ground One, there was not an evidential basis for the Deputy President’s finding that the AMIEU was covered by the Agreement. Accordingly, there was no basis upon which the Deputy President should have taken into account the views of the AMIEU with respect to s 226(b)(i) of the Act.
[16] This ground of appeal has been made out.
Appeal Ground Three
[17] Appeal Ground 3.1 is that the Deputy President made an erroneous factual finding that:
“The Directions invited Employees to express their views about the Application directly to Chambers. The Employees who expressed their views directly to the FWC all opposed the Application.” 9
[18] This finding was not open to the Deputy President on the evidence, being three statutory declarations. The Appellants summarise the statutory declarations 10 as follows:
• the declaration of employee #1 clearly articulates an opposition to the application; 11
• the declaration of employee #2 clearly articulates a strong opposition to the application; 12 and
• the declaration of employee #3 expresses a view about the petition gathered, but does not express any view concerning the application. 13 Before the Deputy President, the Appellants advanced a submission noting that it was unclear from this statutory declaration “whether [employee #3]…opposes or supports the application”.14
[19] Further, by Appeal Ground 3.2, the Deputy President made an erroneous factual finding about the strength of the views of the above employees, finding that “at least three employees strongly oppose the termination.” 15 This finding was not reasonably open to the Deputy President on the evidence, also being that evidence relied on for appeal ground 3.2.
[20] Appeal Ground 3.3 is that the Deputy President made an erroneous factual finding at paragraph [54] of the Decision that:
“The Petition without more suggests that slightly more than half the workforce support the termination and that 130 of the 280 strong workforce do not.”
[21] The parties each submitted evidence 16 in support of the view that the Deputy President’s finding at paragraph [54] was not open on the evidence. By way of summary, we note the following evidence:
• Over two days, 140 signatures of employees on site were collected in support of the application to terminate the Agreement.
• Three employees expressed their views by way of statutory declaration.
• Two employees clearly opposed the application to terminate the Agreement.
[22] We have reviewed the evidence before the Deputy President, being the three employee statutory declarations. We agree with the Appellants’ summary of the contents of the statutory declarations. The statutory declarations of the employees do not support the findings of the Deputy President at paragraph [43] that “The employees who expressed their views directly to the FWC all opposed the Application” and at paragraph [54] that “at least three employees strongly oppose the termination.” Accordingly, Appeal Ground 3.1 and 3.2 have been made out.
[23] In relation to Appeal Ground 3.3, we agree with the submissions that the Deputy President erred in finding that 130 employees “do not” support the application to terminate the Agreement.
Appeal Ground Four
[24] Appeal Ground 4.1 is that the Deputy President erred by applying the wrong test with the wrong threshold when the Deputy President held:
“[55] Having considered all the materials before me the Applicants have not satisfied me that it is in the public interest to terminate the Agreement or that it is appropriate to do so taking into account all the circumstances, including the evidence of the views of the Employees, WAMMCO or the AMIEU.”
[25] The public interest test, set out in ss 226(a) of the Act, provides that the Commission must terminate an agreement if “the FWC is satisfied that it is not contrary to the public interest to do so”. The sub-section does not require a positive finding that termination is in the public interest. It requires only that termination is not contrary to the public interest. This is an error of law.
[26] We agree that the Deputy President has fallen into error, at paragraph [55], in applying the wrong test with respect to the public interest under ss 226(a). Whilst in earlier parts of the Decision the Deputy President has correctly stated the test with respect to public interest 17, paragraph [55] forms part of the conclusions of the Decision, having followed the Deputy President’s consideration. It is critical that the requirements set out in the Act are accurately and consistently applied. The test applied by the Deputy President at [55] is starkly in contrast to the proper test set out in ss 226(a) of the Act. Accordingly, Appeal Ground 4.1 has been made out.
Appeal Ground Five
[27] Further, the Deputy President made an erroneous factual finding that “WAMMCO do not support the termination of the Agreement” 18 (Appeal Ground 5.3). This finding is contrary to the evidence19 and the Decision at paragraph [37] where the Deputy President confirmed that “WAMMCO neither supports nor opposes the Application”.
[28] We have reviewed the evidence submitted in support of Appeal Ground 5.3 and agree that the Deputy President’s finding that WAMMCO do not support the termination of the Agreement 20 was contrary to the evidence before her, and was therefore made in error.
[29] Finally, the Deputy President erred in considering, at paragraphs [12], [31], and [56], that the AMIEU was a party to the proceedings (Appeal Ground 5.4). There were four applicants to the application to terminate the Agreement, and the AMIEU was the representative appointed to represent them. 21
[30] Appeal Ground 5.4 has been made out.
Remaining Appeal Grounds
[31] At the appeal hearing, the parties addressed the Full Bench in relation to the two grounds of appeal at which the parties departed in written submissions, being Appeal Ground 4.2 and Appeal Ground 5.2. We turn now to consider these grounds of appeal.
Appeal Ground 4.2
[32] The Appellants contend that the Deputy President erred by taking into account irrelevant considerations when applying ss 226(a) of the Act. In an email dated 8 November 2018, the Respondent had submitted (Email Submission):
“…
Public Interest
The Western Australian Meat Marketing Cooperative Ltd has recently been involved in political discussions relating to the expansion of the Western Australian sheep processing industry as a result of the growing public interest in ceasing the international live sheep trade. A curtailment of the operation of Western Australia’s largest lamb processor may not be in the best interests of this public pursuit.
…” 22
[33] The Deputy President considered the Respondent’s submission as a public interest consideration pursuant to ss 226(a), and found as follows:
“[19] With respect to the public interest WAMMCO note that there is growing public opposition to live sheep export. WAMMCO submit that an industrial instrument that imposes operational or financial restrictions on its business is likely to limit its capacity to provide an alternative to live sheep export.
…
[49] With respect to the public interest WAMMCO note that there is growing public opposition to live sheep export. WAMMCO submit that an industrial instrument which imposes operational or financial restrictions on its business is likely to limit its capacity to provide an alternative to live sheep export. The issue of live sheep export is a contentious issue. There is divergence in views about the public interest in ceasing it. WAMMCO did not particularise how either the Award or the Agreement would impose restrictions which would impact on its capacity to provide an alternative to live sheep export.”
[34] Citing case law, the Appellants submit what properly constitutes a public interest consideration. 23 The Respondent’s submission, when properly considered, relates to live sheep export public policy, public opinion and the employer’s interests. This is a consideration for ss 226(b) of the Act, and therefore the Deputy President has erroneously given weight and consideration to an irrelevant matter when considering ss 226(a) of the Act.
[35] The Respondent does not agree with the Appellant with respect to Appeal Ground 4.2. The Respondent submits that the correct test for considering the public interest is set out at paragraph [18] of the Decision, and the Deputy President has not erred in law in applying this test. Paragraph [18] reads as follows:
“The public interest is distinct in nature from the interests of those covered by the Agreement. The views of those covered by an agreement may be relevant to the exercise of the discretion if they shed light on the effect of the termination on public interest, but those views should not be given any independent weight.” (Footnotes omitted)
[36] The Respondent relies on paragraph [49], particularly where the Deputy President says “The issue of live sheep export is not a contentious issue. There is a divergence in views about the public interest in ceasing it”, in support of their position that the Respondent’s submissions were not accepted and no weight were given to them.
[37] In oral submissions, the Appellants confirmed their submission that the Email Submission of the Respondent did not contain matters that were genuine public interest considerations, but rather concerned the Respondent’s own interests, which are a consideration for ss 226(b), not ss 226(a). 24 Accordingly, the Deputy President “raised it and was willing to consider those matters in relation to the question of public interest and we [the Appellants] say she did that erroneously”.25
[38] The Appellants also stated “we [the Appellants] do agree with the Respondent that there was no indication that any weight was attached to those matters. It seems that she considered them in relation to the public interest but then disregarded those matters so in that regard we respectfully agree with the Respondent”. 26
[39] We share the view, to the extent that the parties agree, that the issue of live sheep export was not a factor taken into account in the Deputy President’s consideration of ss 226(a) with respect to the public interest. The Deputy President’s observation at paragraph [49], that “The issue of live sheep export is a contentious issue. There is a divergence in views about the public interest in ceasing it”, supports this view. We are satisfied that the issue of live sheep export, whilst it was noted, was not taken into account by the Deputy President and accordingly we find no error with respect to her consideration.
Appeal Ground 5.2
[40] The Appellants submit that the Deputy President erred in finding that
• “…the extent of the disadvantage if any depends on rostering” (Appeal Ground 5.1); and
• “[a] significant extent of the disadvantage relied upon by the AMIEU depends on narrow interpretation of the Agreement not currently applied by WAMMCO”. 27 (Appeal Ground 5.2).
[41] The Appellants submit that:
• the Agreement provides arrangements and conditions that are disadvantageous when compared with the Modern Award;
• all disadvantageous arrangements and conditions are relevant, including those not currently in use;
• disadvantageous arrangements can be implemented at any time; and
• the Commission’s consideration of “… all of the circumstances…” for the purposes of ss 226(b) should not be limited to current rostering, but the capacity inherent in an instrument to cause disadvantage.
[42] The Respondent submits that the findings contended by the Appellants to have been made in error, set out in Appeal Ground 5.1 and Appeal Ground 5.2, relate to the evidence regarding payments and rostering practices relating to overtime and the further finding at paragraph [25] of the Decision that:
“WAMMCO dispute AMEIU’s assertion that wage increases do not flow into overtime rates of pay”.
[43] The Respondent submits that the applicable evidence that was available is, in summary, as follows:
• The Respondent provided a spreadsheet setting out the current gross weekly wages actually paid and confirmed that prescribed annual adjustments to base rates contained in the Agreement had a flow on effect to overtime rates. 28
• The Commission subsequently wrote to the parties setting out how it had conducted its comparison of the Agreement and the Modern Award and advising, inter alia, that overtime rates had been calculated on the basis of a flat rate and that wage increases had not been applied to the overtime rates.
• The Respondent’s response to the above correspondence from the Commission did not challenge the Commission’s application regarding overtime rates.
[44] The Respondent therefore submits that it was not reasonably open for the Deputy President to have found that “WAMMCO dispute AMEIU’s assertion that wage increases do not flow into overtime rates of pay” 29 or that “[a] significant extent of the disadvantage relied upon by the AMIEU depends on narrow interpretation of the Agreement not currently applied by WAMMCO”.30
[45] At the hearing, the Appellants noted that the Respondent’s submission in response to Appeal Ground 5.3 submits a further erroneous finding made by the Deputy President at paragraph [25] of the Decision. 31
[46] The Appellants do not agree that the Deputy President’s finding at paragraph [25] of the Decision was an erroneous one. Rather, the Appellants contend that this finding was reasonably on the evidence for the Deputy President to make and that this finding formed part of the Deputy President’s consideration. 32 The Appellants rely on paragraph [52] in support of this view:
“AMIEU have demonstrated only that some Employees might be better off under the Award in particular circumstances. A significant extent of the disadvantage relied upon by the AMIEU depends on narrow interpretation of the Agreement not currently applied by WAMMCO. Furthermore, the extent of the disadvantage if any depends on rostering decisions of the WAMMCO.”
[47] In oral submissions, the Respondent stated its position that paragraph [25] was relevant to the two findings raised by the Appellants in Appeal Ground 5.1 and Appeal Ground 5.2, and that the Deputy President’s conclusion at paragraph [52] was not reasonably open on the evidence. 33 Further, the Respondent acknowledged that as there are clear other grounds, entirely agreed between the parties, on which on the appeal should be upheld and the Decision quashed, the more specific issues arising from Appeal Ground 5.2 seem to “fall away”.34
[48] The parties are in agreeance that it was not reasonably open for the Deputy President to make the finding set out in paragraph [52] of the Decision. Their contention with respect to this ground of appeal arises from the Respondent’s submissions regarding paragraph [25] of the Decision. We are therefore of the view the that it is not necessary to determine the parties’ departure from one another with respect to Appeal Ground 5.2 and the finding at paragraph [25].
[49] The errors of fact and errors of law agreed between the parties and our consideration of such grounds provide a sufficient basis for our conclusion below.
Permission to appeal
[50] Having regard to the above analysis, we are satisfied that the appeal enlivens the public interest. The Appellant has identified, and the Respondent concurred, appealable errors of both fact and law within the Decision. It is in the public interest to ensure that the requirements of which the Commission must be satisfied when approving enterprise agreements are properly considered, administered and applied in each matter. Appellate intervention, as sought by both the parties, is both warranted and necessary to examine the identified errors and allow the re-determination of the application to terminate the Agreement.
Conclusion
[51] We have read the Decision fairly and as a whole, and considered all of the materials filed by the parties. The Appellant has identified, and the Respondent agreed, to a number of grounds of appeal relating to errors of fact and law. We have considered each of these grounds above and find that such errors warrant the quashing of the Deputy President’s Decision.
[52] We therefore find it appropriate to remit the application to terminate the Agreement to another Member of the Commission for re-determination.
[53] We order as follows:
• Permission to appeal is granted.
• The Appeal is upheld.
• The Decision ([2019] FWC 1461) is quashed.
• Matter AG2018/5604 is remitted to Deputy President Beaumont.
VICE PRESIDENT
Appearances:
Ms K Rogers on behalf of the Appellants.
Ms R Harding on behalf of the Respondent.
Hearing details:
28 May.
2019.
Melbourne with videolink to Adelaide and Perth.
Final written submissions:
Appellants’ final written submissions dated 24 April 2019.
Respondent’s final written submissions dated 20 May 2019.
Printed by authority of the Commonwealth Government Printer
<PR709274>
1 [2019] FWC 1461.
2 Section 596(2)(a) of the Fair Work Act 2009 (Cth).
3 Decision at [13] – [15].
4 Decision at [5].
5 Appeal Book, page 132 and 133.
6 Appeal Book, page 135.
7 Appeal Book, page 17.
8 [2013] FWCA 5377.
9 Decision at [43].
10 The names of the employees who provided statutory declarations are not stated for reasons of privacy.
11 Appeal Book, page 77 and 78.
12 Appeal Book, page 71 - 74.
13 Appeal Book, page 75 and 76.
14 Appeal Book, page 65 and 66.
15 Decision at [54].
16 Appellants’ evidence contained in Appeal Book, page 137 item 4.a., 4.i., 4.h., 4.e., 4.j; Appeal Book tab 15; tab 10. Respondent’s evidence contained in Appeal Book, pages 137, 149 -156, 80, 138, 71 – 73, 77 – 78, Page 4 item 4.1.
17 Decision at [14] and [17].
18 Decision at [53].
19 An email from WAMMCO to the Deputy President’s chambers dated 8 November 2017 and an email from WAMMCO to the AMIEU dated 1 June 2018.
20 Decision at [53].
21 Appeal Book, page 132 and 133.
22 Appellants’ final written submissions dated 24 April 2019; Appeal Book, page 80.
23 Application by Aurizon Operations Limited & Aurizon Network Pty Ltd and Another [2015] FWCFB 540 at [129]; Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 at 40–41.
24 Transcript of proceedings on 28 May 2019 PN11.
25 Transcript of proceedings on 28 May 2019 PN13.
26 Transcript of proceedings on 28 May 2019 PN13.
27 Decision at [52].
28 Appeal Book, page 79.
29 Decision at [25].
30 Decision at [52].
31 Transcript of proceedings on 28 May 2019 PN27.
32 Transcript of proceedings on 28 May 2019 PN20; PN23; PN27.
33 Transcript of proceedings on 28 May 2019 PN39.
34 Transcript of proceedings on 28 May 2019 PN25.
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