Sarah Howlett v Serco Australia Pty Ltd - [2022] FWCFB 59

[2022] FWCFB 59

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Sarah Howlett
v

Serco Australia Pty Ltd & others

(C2022/1184)

VICE PRESIDENT HATCHER
deputy president binet
COMMISSIONER P RYAN

SYDNEY, 13 APRIL 2022

Appeal against decision [2021] FWCA 5445 of Commissioner Wilson at Melbourne on 2 September 2021 in matter number AG2021/6637

Introduction

Ms Sarah Howlett has appealed against the decision of Commissioner Wilson of 2 September 2021[1] to approve the Serco Immigration Services Agreement 2021[2] (2021 Agreement) with undertakings. Permission for the appeal is required under s 604 of the Fair Work Act 2009 (FW Act).

Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides that a notice of appeal under s 604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time as may be allowed by the Commission on application by the appellant. Ms Howlett filed her notice of appeal on 16 February 2022, almost 21 weeks outside the time prescribed by rule 56(2). Accordingly, Ms Howlett requires an extension of time pursuant to rule 56(2)(c) to file her appeal in order for her application for permission to appeal and the appeal itself to be considered.

The appeal was listed for hearing on 24 March 2022. Directions for the filing of submissions in advance of the hearing were issued to the parties on 17 February 2022. In addition to the submissions filed by Ms Howlett and by Serco Australia Pty Ltd (Serco), the employer under the 2021 Agreement, a document was filed by Mr Craig McComb, an employee covered by the 2021 Agreement who was an employee bargaining representative for the negotiations for the 2021 Agreement. The document filed by Mr McComb set out his recollections of what was agreed during the negotiations in relation to the issue raised by Ms Howlett. At the hearing of the appeal, we admitted this document as a submission in the appeal.

Background

Clause 3 of the 2021 Agreement provides that the “parties to this Agreement” are Serco, employees of Serco engaged in the classifications set out in clauses 15 and 17 of the Agreement (relevantly including Detention Service Officers, Detention Support Workers and Detention Service Managers) at Immigration Detention Centres and other immigration services operated by Serco under contract with the Department of Home Affairs, and the United Workers’ Union (UWU) and the Union of Christmas Island Workers. Ms Howlett is employed by Serco as a Detention Service Officer (DSO) and is covered by the Agreement. At the time she commenced her employment with Serco as a DSO, the preceding Serco Immigration Services Agreement 2018 (2018 Agreement) applied to her employment. Ms Howlett was not an employee bargaining representative for the 2021 Agreement and consequently did not participate in the negotiations for that agreement.

The issue raised by Ms Howlett in her appeal concerns the salary progression for DSOs. Clause 15 of 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: [2022] FWCFB 59
Decision Date: 13 APRIL 2022

CaseChat Overview and Summary

Sarah Howlett has appealed against the decision of the Commissioner to approve the Serco Immigration Services Agreement 2021, seeking an extension of time to file her appeal as she was outside the prescribed 21-day time limit. The primary issue before the Fair Work Commission was whether the appeal should be granted an extension of time to file the appeal and, if so, whether the appeal should be permitted to proceed. The appeal was heard on 24 March 2022. The Commission found that the delay in filing the appeal was lengthy, no satisfactory explanation for the delay had been provided, and the appeal did not have reasonable prospects of success. The Commission declined to extend time for the filing of the appeal and dismissed the appeal as incompetent.

The Commission considered the principles of extending time for lodging an appeal and found that the delay was significant, no satisfactory reason for the delay had been provided, and the appeal did not have reasonable prospects of success. The Commission found that Ms Howlett was aware that the period of service required to progress from DSO 1 to DSO 2 under the 2021 Agreement was going to increase from 12 months to 24 months when she voted on the agreement. There was no basis in the terms of the 2021 Agreement, or the information provided by Serco to employees to explain the agreement, for Ms Howlett or any employee to form the view that the new progression requirement would not apply to existing employees classified as DSO 1, and Ms Howlett did not contend otherwise. Ms Howlett knew, at the time the decision to approve the 2021 Agreement was made, that the period of service required to progress to DSO 2 would be extended to 24 months. Ms Howlett did not identify any logical reason why she should wait until she reached 12 months’ service on 15 October 2021 before taking any further steps to pursue her grievance. Having been informed by Serco on or about 24 November 2021 that the new requirement applied to her, she again waited more than a month before raising the issue with the Fair Work Ombudsman (FWO), the Union of Christmas Island Workers, and her manager. Having been (allegedly) advised by the FWO that she could appeal the Commissioner’s decision, and advised by her manager that Serco’s position would not change, she then waited another eight weeks before filing her appeal. The Commission found that Ms Howlett did not provide a satisfactory reason for the delay in filing the appeal.

The Commission also found that the appeal did not have reasonable prospects of success. Ms Howlett’s grievance in respect of the decision was founded upon the detriment visited upon her as a DSO 1 under the 2021 Agreement compared to the position which applied under the 2018 Agreement at the time she commenced her employment. However, this is not a matter relevant to the better off overall test (BOOT) approval requirement contained in s 186(2)(d) of the Fair Work Act 2009 (FW Act) and explicated in s 193. The comparison required by the BOOT is between the enterprise agreement for which approval is sought and the relevant modern award. The modelling provided by Serco showed that a DSO 1B would earn an average of $2,619.24 per fortnight under the Agreement compared to $2,520.90 for a Detention Services Officer Level 2 under the Award for the same roster. That meant that there was a proper basis for satisfaction that, in respect of an employee such as Ms Howlett, the 2021 Agreement passed the BOOT. In addition, there was material before the Commission which indicated that the 2021 Agreement contains a range of other benefits for which the Award does not provide. Ms Howlett has provided the Commission with no modelling or analysis to demonstrate that the Agreement does not pass the BOOT. The material before the Commission demonstrates that the change in the qualifying period to progress to DSO 2 was clearly explained to employees before they voted to approve the 2021 Agreement.

Accordingly, the Commission found that the interests of justice would not be served by granting an extension. The delay in filing the appeal was lengthy, no satisfactory explanation for the delay has been afforded, and the appeal does not have reasonable prospects of success. The Commission declined to extend time for the filing of the appeal and dismissed the appeal as incompetent.

Orders