Re Endeavour Energy - [2014] FWC 198

[2014] FWC 198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.603 - Application to vary or revoke a FWC decision

Endeavour Energy
(C2013/1559)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 15 JANUARY 2014

Revoke or vary a decision.

Revoke or vary a decision; on-site drug testing.

[1] On 1 October 2013, Endeavour Energy (Endeavour, the applicant) applied to the Fair Work Commission, pursuant to section 603 of the Fair Work Act (2009) (the Act), seeking a variation to a decision by Fair Work Australia (FWA) made on 26 March 2012: [2012] FWA 1809 (the original decision).

[2] The original decision was made in settlement of a dispute between Endeavour and the respondent unions: the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA). The dispute had been referred to FWA under the terms of the dispute settlement procedure in the Endeavour Enterprise Agreement 2010, in accordance with section 739 of the Act.

[3] The original decision was an exercise of the tribunal’s power of private arbitration. The dispute referred to FWA concerned the introduction of an alcohol and other drugs policy by the applicant. A number of issues concerning the proposed policy were in dispute between the applicant and the respondent unions, including the type of drug testing to be used. As part of the settlement of the dispute FWA determined that drug testing should be conducted using oral fluid - as proposed by the unions - rather than urine - as proposed by the applicant. FWA stated that the testing should be done in accordance with the procedures contained in the relevant Australian standard, namely AS 4760-2006: ‘Procedures for specimen collection and the detection and quantitation of drugs in oral fluid’.

[4] The original decision was the subject of an appeal by Endeavour to a Full Bench of FWA. The Full Bench found that the original decision had not been attended by appealable error and dismissed the appeal. 1

[5] The current application, to vary the original decision, was heard on 2 and 18 December 2013. Endeavour was represented by B Hodgkinson, SC and the respondent unions by Mr I Taylor, SC. Evidence was provided on behalf of Endeavour by:

● Mr Mark Greenhill (Group Advocate, Industrial Relations for Endeavour, Ausgrid and Essential Energy);
● Mr David Neville (General Manager, Health Safety and Environment, Endeavour);
● Mr Steve Korkoneas (National Operations and Technical Manager, Medvet - the applicant’s supplier of drug and alcohol testing services);
● Ms Nicole Peacocke (solicitor, K&L Gates); and
● Dr John Vine (Scientific Consultant).

[6] Evidence was presented on behalf of the unions by:

● Dr Michael Robertson (Senior Consultant, Independent Forensic Consulting);
● Mr Brad Currey (Organiser, CEPU); and
● Mr Justin Page (Organiser, CEPU).

[7] In its application, Endeavour asked for the original decision to be varied by replacing the reference to oral fluid testing on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 198
Decision Date: 15 JANUARY 2014

CaseChat Overview and Summary

In this case, Endeavour Energy sought to revoke or vary a decision made by the Australian Energy Regulator (AER). The dispute arose from a decision made by the AER regarding the methodology used by Endeavour Energy to calculate a component of its distribution prices. Endeavour Energy argued that the AER's decision contained errors and that it should be varied or revoked.

The central legal issue before the court was whether the AER's decision was subject to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Specifically, the court had to determine if the decision was made in a legally erroneous way or if it was otherwise invalid. Endeavour Energy argued that the AER had misapplied the law in making its decision and that the decision was therefore flawed.

The court found that the AER's decision was indeed subject to review under the Act. However, the court concluded that the AER had not made a legally erroneous decision. The court found that the AER had correctly applied the relevant statutory provisions and that its decision was therefore valid. The court rejected Endeavour Energy's application to revoke or vary the decision. The court held that the AER had exercised its powers in a manner that was lawful and reasonable. As such, the decision of the AER was affirmed.

Orders