Rangi v Advance Exchange Pty Ltd & Ors
[2014] FWCFB 7938
•20 NOVEMBER 2014
[2014] FWCFB 7938
DECISION
| Fair Work Act 2009 |
| s.604 - Appeal of decisions |
| P Rangi |
| v |
Advance Exchange Pty Ltd; The Australian Workers' Union; Mushroom
Exchange & Action Workforce
(C2014/1398)
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
| COMMISSIONER LEE | MELBOURNE, 20 NOVEMBER 2014 |
Appeal against decision [[2013] FWCA 6184] of Senior Deputy President Hamberger at Sydney on 27 August 2013 in matter number AG2013/2422 – agreement does not cover or apply to appellant – interest beyond ordinary member of the public not demonstrated – no standing to bring appeal – appeal dismissed.
[1] On 5 August 2014, Ms P Rangi (the Appellant) lodged an appeal under s.604 of the
Fair Work Act 2009 (the Act) against a decision[1]of 27 August 2013 made by Senior Deputy President Hamberger, which approved the Advance Exchange and AWU Costa Exchange - Mushroom Category Enterprise Agreement 2013[2](the Advance Exchange Agreement). The Advance Exchange Agreement is a greenfields agreement made between Advance Exchange Pty Ltd (Advance Exchange) and The Australian Workers’ Union (AWU), each of which is a Respondent to the appeal. The Advance Exchange Agreement covers the Respondents and all employees of Advance Exchange employed in the classifications contained within the Agreement at the Mernda and Yarrambat operations of Costa Exchange.
[1][2013] FWCA 6184.
[2]AE403459.
[2] The Appeal was allocated to this Full Bench on 5 August 2014. On 6 August 2014
Vice President Hatcher issued Directions for the conduct of the appeal and the Notice of
Listing.
[3] On 7 August 2014, the Appellant made a “Request for discovery of some data relevant to the proceedings” to the Presiding Member of the Appeal Bench, Senior Deputy President Watson. The information sought concerned “pick per hour” data for each picker, prior to the making of the Advance Exchange Agreement and data in relation to the number of “weekend pickers” employed over the period March 2014 to April 2014.
[4] On 8 August 2014, Senior Deputy President Watson responded by pointing out that an application for an order to produce required an application via a Form F52 and raised some preliminary issues relevant to the considerations for the making of such an order to produce directed to Advance Exchange:
[2014] FWCFB 7938
preliminary advice as to the manner in which the Appellant was “aggrieved” by the
decision of Senior Deputy President Hamberger, noting that the right to seek permission to appeal under s.604(1) of the Act is only available to a “person aggrieved”; and
given the decision of Senior Deputy President Hamberger was made on 27 August
2013, and the appeal was lodged on 5 August 2014, the appeal was made 342 days after the decision was made, beyond the prima facie period within Rule 56(2)(a) of the Fair Work Commission Rules 2013 (the Rules) – “within 21 calendar days after the date of the decision being appealed against”.
[5] On 26 August 2014, following a failure of the Appellant to file an Appeal Book and
respond to the preliminary issues raised by Senior Deputy President Watson, solicitors for
Advance Exchange sought a directions hearing.
[6] Senior Deputy President Watson listed the matter for further directions on
12 September 2014.
[7] In the course of the directions hearing, Senior Deputy President Watson decided to segment the hearing of the matter to deal first with the preliminary issues of the standing of the Appellant to bring the appeal and an extension of time under Rule 56(2)(c) of the Rules to bring the appeal.[3]The Appellant[4]and each Respondent[5]consented to dealing with those preliminary issues “on the papers” (without oral submissions) under s.607(1) of the Act.
[3]Transcript, at para 181.
[4]Transcript, at para 182.
[5]Transcript, at paras 124, 132 and 134. .
[8] Subject to further directions made by Senior Deputy President Watson, written submissions were received from:
The Appellant on 16 September 2014 and 3 November 2014;
The Respondents on 21 September 2014.
[9] In this decision, we determine the preliminary issues of the standing of the Appellant
to bring the appeal and the extension of time to bring the appeal, on the basis of the written
submissions filed.
Standing of the Appellant to bring the appeal
[10] Consideration of the standing of the Appellant to bring the appeal necessarily relates to the basis of the appeal.
[11] The appeal grounds contend that Senior Deputy President Hamberger erred in:
failing to satisfy himself that the Advance Exchange Agreement approved was a
Greenfields Agreement (s.172(2)(b) of the Act);
finding that the Advance Exchange Agreement did not contravene s.55 (s.186(2)(c) of the Act) and passed the better off overall test[6](s.186(2)(d) of the Act); and [6]Against the Horticulture Award 2010 [MA000028].
finding that it was in the public interest to approve the Advance Exchange
Agreement (s.187(5)(b) of the Act). The appeal grounds contended that the Senior
[2014] FWCFB 7938Deputy President erred in relying only on Forms F20 and F21, which the Appellant asserted were misleading and deceptive.
[12] An appeal under s.604 of the Act, may be brought by a “person who is aggrieved by a decision” (s.604(1) of the Act).
[13] The meaning of a “person aggrieved” was considered by a Full Court of the Industrial
Relations Court of Australia in Tweed Valley Fruit Processors Pty Ltd v Ross and Others7
(Tweed Valley) in the context of s.45 of the Industrial Relations Act 1988.
[14] In Tweed Valley, the Full Court found that:
in determining whether a person is a “person aggrieved” for the purposes of
exercising a statutory right of appeal, it is necessary to consider the relevant
statutory context;8
a person is “aggrieved” by an act which operates in restraint of what would
otherwise have been an employee’s legal rights;9
the words “‘person aggrieved’ should not be subjected to a restricted interpretation;
‘they . . . include a person who has a genuine grievance because an order has been
made which prejudicially affects his interest’”;10 and
a person who is “aggrieved” extends to “a person who can show a grievance which
will be suffered as a result of the decision complained of beyond that which he or
she has as an ordinary member of the public”.11
[15] The Full Court also found that:
“There is room for the view that a wider category of people has a legitimate interest in
ensuring that the commission acts within its jurisdiction than those who are directly
affected by a particular decision, and so allowed to agitate its merits.”12
[16] Read in the context of the Full Court’s consideration of the interests of an industrial organisation, whose interests were found to extend beyond that of an ordinary member of the
public,13 the wider category of people referred to by the Full Court extends in so far as a
person who has an interest beyond that of an ordinary member of the public.
[17] The approach in Tweed Valley has been applied by Full Benches of Fair Work Australia and the Fair Work Commission including Australian Industry Group14 and, most recently, in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (Temoho).15 While Tweed Valley was decided in the
context of s.45 of the Industrial Relations Act 1988, the statutory context of a person aggrieved in s.604 of the Act has been found to be not relevantly different and Tweed Valley has been applied in the context of s.604 of the Act.16 The approach in Tweed Valley has been stated as “the term ‘person aggrieved’ is capable of extending beyond persons whose legal
interests are affected by the decision in question and extends to persons with an interest in the
decision beyond that of an ordinary member of the public”.17
[18] The question which arises in the current matter is whether the Appellant is a person
whose legal interests are affected by the decision of Senior Deputy President Hamberger or, if
[2014] FWCFB 7938
not, the Appellant is a person with an interest in the decision beyond that of an ordinary
member of the public.
[19] The Appellant submitted that since early 2006, the Appellant worked for Oneforce Group Australia Pty Ltd (Oneforce) under the Oneforce and AWU Mushroom Harvesting &
Support Staff Agreement 201218 (the Oneforce Agreement). The Appellant submitted that on
13 May 2014, Oneforce sold its business to Action MMX Pty Ltd (Action MMX), with the termination of the employment of the employees by Oneforce and their re-employment by Action MMX on the same wage and conditions with full continuity of service and continued accrual of statutory entitlements.
[20] There was a transfer of employment within the meaning of s.311 of the Act.19 The AWU applied for an amendment of the Oneforce Agreement pursuant to s.217 of the Act, to remove ambiguity or uncertainty for employees, by amending the agreement title and the employer name to Action MMX to make the rights and entitlements of employees under theagreement clear20 in circumstances of the transfer of the business. That application was
granted on 26 June 2013.21
[21] It is clear from the submissions of the Appellant that she worked under the Oneforce Agreement prior to and after its variation on 26 June 2013 to the Action MMX and AWU
Mushroom Harvesting and Support Agreement 2012 (the Action MMX Agreement). On the
Appellant’s submissions, that remains the case.22
[22] The Appellant argued that she was an “aggrieved person” on two bases.
[23] First, she argued that on 4 August 2014 she was requested to transfer her employment from Action MMX to Advance Exchange, such that her employment would be regulated by the Advance Exchange Agreement rather than the Action MMX Agreement and, in her submission, with lesser terms and conditions of employment. The Appellant submitted that, upon refusing to do so, she was transferred to a lower classification level than under the Oneforce Agreement, at a lower rate and with reduced hours of work, which constituted an alteration to her position and prejudiced her in that her interests have been directly affected due to the presence of unlawful terms in the Advance Exchange Agreement.
[24] We find that the Appellant is not an aggrieved person for the purpose of s.604(1) of the Act in the sense that her interests have been affected by the decision to approve the Advance Exchange Agreement. The Appellant has no genuine grievance arising from the approval decision which prejudicially affects her interests. This is so, because the Appellant is not covered by the Advance Exchange Agreement. She is not employed and has never been employed by Advance Exchange or been subject to the Advance Exchange Agreement. Her employment cannot transfer to Advance Exchange without her consent and such consent has been withheld.
[25] The Appellant asserts that she has been prejudiced in her employment because upon her refusal to transfer her employment to Advance Exchange, she has been demoted to a lower classification level under the Action MMX Agreement, at a lower rate and with reduced hours of work. Even if that were so, no prejudice arises from the decision to approve the Advance Exchange Agreement. Any prejudice to the Appellant, if her assertions were made out, would arise from action by Action MMX (it is asserted by the Appellant, in concert with Advance Exchange) amenable to an adverse action application under the Act (s.372). Indeed,
[2014] FWCFB 7938
such an application has been made by the Appellant in matter number C2014/1459. Any such prejudice, if it exists, does not arise from the approval decision of Senior Deputy President Hamberger. That decision does not prejudicially affect the Appellant’s interests.
[26] Second, the Appellant submitted, in the alternative, that although she was not directly prejudiced by the approval of the Advance Exchange Agreement, she is in the wider category of people having a “legitimate interest in ensuring that the commission acts within its jurisdiction than those who are directly affected by a particular decision”,23 as per Tweed
Valley. The alternative basis for establishing the standing of the Appellant, extending beyond
persons whose legal interests are affected by the decision of Senior Deputy President Hamberger requires the establishment of an “interest in the decision beyond that of an ordinary member of the public”.24 The “wider category of people has a legitimate interest in
ensuring that the commission acts within its jurisdiction” in Tweed Valley is so qualified.
[27] An interest beyond that of an ordinary member of the public extends beyond a mere
intellectual or emotional concern. As noted by Gibbs J in Australian Conservation
Foundation Incorporated v The Commonwealth of Australia and Others:25
“A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.”
[28] The Advance Exchange Agreement does not cover or apply to the Appellant. The Appellant has not demonstrated an interest beyond that of an ordinary member of the public in the approval decision.
[29] For these reasons we are not persuaded that the Appellant has standing to bring her appeal and dismiss the appeal.
[30] It is unnecessary to consider whether the substantial extension of time sought under Rule 56(2)(c) of the Rules for bringing the appeal should be granted.
SENIOR DEPUTY PRESIDENT
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7 (1996) 137 ALR 70.
8 (1996) 137 ALR 70, at p. 90.
9 (1996) 137 ALR 70, at p. 90.
10 (1996) 137 ALR 70, at p. 90.
11 (1996) 137 ALR 70, at p. 90, applying Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54
FLR 421, at 437 in the context of the Administrative Decisions (Judicial Review) Act 1977.
12 (1996) 137 ALR 70, at p. 91.
13 (1996) 137 ALR 70, at p. 91.
14 [2010] FWAFB 4337, at para 11.
15 [2014] FWCFB 7154, at paras 18 and 19.
16 [2010] FWAFB 4337, at para 11and [2014] FWCFB 7154, at para 19.
17 [2010] FWAFB 4337, at para 11.
18 AE893658 PR523311.
19 [2013] FWCA 4027, at para 22.
20 [2013] FWCA 4027, at para 18.
21 [2013] FWCA 4027, at para 24.
22 Appellants submissions, at paras 2.1 and 2.5.
23 (1996) 137 ALR 70, at p. 91.
24 [2010] FWAFB 4337, at para 11.
25 (1980) 146 CLR 493, at 530–531.
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