QGC Pty Ltd v Australian Workers' Union

[2017] FWCFB 1165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

QGC Pty Ltd
v
Australian Workers’ Union, The
(C2016/6512)

DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT DEAN
COMMISSIONER SAUNDERS BRISBANE, 3 MARCH 2017

Permission to appeal against decision [2016] FWC 6671 of Commissioner Simpson at Brisbane on 24 October 2016 in matter number B2016/915.

Introduction

[1] QGC Pty Ltd (Appellant/QGC) has applied under s. 604 of the Fair Work Act 2009 (the Act) for permission to appeal and appeals a decision of Commissioner Simpson issued on 24 October 2016 (Decision). 1 The Decision concerned an application for a majority support determination made by the Australian Workers’ Union (the Respondent/AWU) under s. 236 of the Act. In the Decision the Commissioner determined to grant the AWU’s application and he subsequently issued the majority support determination sought by the AWU (Determination) on 24 October 2016.2

[2] QGC’s notice of appeal stated six grounds of appeal contending that the Commissioner erred in addressing the fairly chosen issue in s. 237(2)(c) of the Act by:

1. Failing to consider the way that QGC had organised is enterprise;
2. Treating the performance of a different role, task, skill or function or work as operational distinctiveness;
3. Failing to consider the nature of the work performed by employees excluded from coverage, including the operational and organisational interrelationships between those excluded employees and the employees covered;
4. Treating the willingness or wish of employees to bargain as influencing the fairness of the group of employees to be covered, when in reality the former and latter matters are separate;
5. Considering that the group was geographically distinct, in circumstances where each of the employees in the group to be covered worked not at a single location or within a geographic subset of the area of the business but instead each worked at a separate location; and
6. Concluding that the group was not arbitrarily chosen in circumstances where membership of the group to be covered depended on membership of the AWU and such membership was an irrelevant consideration to the fairly chosen issue.

[3] The appeal was heard on 13 December 2016. In written submissions dated 24 November 2016, the Appellant sought permission to be represented by Mr Dixon SC and Mr Gotting of Counsel. The Respondent in written submissions dated 14 November 2016 also sought permission to be represented by Counsel. By email also dated 14 November 2016, the Respondent sought an adjournment of the hearing on the basis that its Counsel was not available on the date on which the appeal had been listed for hearing. The request for an adjournment was refused. On 8 December 2016, the Respondent filed further submissions opposing the Appellant being represented by Counsel on the basis that the Respondent would now be represented by its industrial advocate and that fairness would be achieved if the Appellant was represented by the Solicitor who represented the Appellant in the hearing at first instance.

[4] Permission was granted for the Appellant…