TasTAFE v United Workers' Union - [2023] FWC 811

[2023] FWC 811

FAIR WORK COMMISSION

REASON FOR DECISION

Fair Work Act 2009

s.604—Appeal of decision

TasTAFE

United Workers’ Union

(C2023/1713)

TasTAFE

Australian Education Union

(C2023/1715)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 APRIL 2023

Appeal against decision [2023] FWC 391 of Commissioner Lee at Melbourne on 24 March 2023 in matter number AG2022/1809 and AG2022/1961 - Stay

The following is an edited version of my decision and reasons, delivered ex-tempore on 30 March 2023 and recorded in the transcript.

TasTAFE is a body corporate continuing to exist as such by reason of s 4(2) of the TasTAFE (Skills and Training Business) Act 2021. It has particular functions set out in s 5 of that Act, including the provision of vocational education and training to a high standard directed to the needs of employers, students and the community.

On 24 March 2023, Commissioner Lee determined two applications for consolidation orders under s 768BG of the Fair Work Act 2009 to the effect that copied state instruments for transferring employees are or will be also copied state instruments for certain non-transferring employees. The two applications were made respectively by the Australian Education Union (AEU) and the United Workers’ Union (UWU).

The Commissioner acceded to the applications, and he made two consolidation orders, each to take effect on 31 March 2023. TasTAFE has, by notices of appeal each lodged on 29 April 2023, applied for permission to appeal the decision and the orders and, if granted, appeals the decision and orders. TasTAFE also applies for a stay of the consolidation orders.
An appeal against a decision is not one of right. Permission to appeal is required. Permission to appeal may be (and in unfair dismissal appeals is) subject to the public interest test. That is, the Commission must grant permission if it is in the public interest to do so. The Commission may, on discretionary grounds, also grant permission to appeal in some cases. The principles applicable to the grant of an order a stay a decision or order are not in dispute. Briefly, it will usually be necessary for the applicant for an order for a stay to make out an arguable case with some reasonable prospect of success, both as to the question of permission to appeal and the merits of the appeal, and show that the balance of convenience favours the grant of a stay order.
The appeal notices are in substantially the same form. The appeal notice in C2023/1713, sets out nine grounds of appeal, whilst the appeal in C2023/1715 sets out eight. The first eight grounds of each notice of appeal are, in substance, the same and without traversing all of the appeal grounds, it is sufficient for me to make the following observations. At least two of the appeal grounds – appeal grounds 1 and 5 – raise issues of the proper construction and application of particular provisions in s768BG(4). First, in relation to the meaning of the phrase “the employees who would be…

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: [2023] FWC 811
Decision Date: 4 APRIL 2023

CaseChat Overview and Summary

In the matter of an appeal by TasTAFE against a decision of Commissioner Lee, the Fair Work Commission was tasked with determining whether TasTAFE should be granted permission to appeal a decision that consolidated certain state instruments for transferring and non-transferring employees. The appeal was also accompanied by an application for a stay of the consolidation orders made by the Commissioner. The appeal was lodged by TasTAFE against the decisions and orders made by Commissioner Lee on 24 March 2023, in relation to two applications for consolidation orders made by the Australian Education Union and the United Workers’ Union.

The primary legal issues before the Commission were whether TasTAFE had established an arguable case with some reasonable prospect of success on the merits of its appeal and whether the balance of convenience favoured the grant of a stay of the consolidation orders. Specifically, TasTAFE argued that the Commissioner’s interpretation of particular provisions in section 768BG(4) of the Fair Work Act 2009 was erroneous. The first contention was that the Commissioner’s interpretation of the phrase "the employees who would be affected by the order" was too broad, while the second concerned the interpretation of the requirement to consider "the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer." TasTAFE argued that both interpretations were incorrect and that if the appeal were successful, it would create difficulties for TasTAFE in unwinding the legal obligations imposed by the consolidation orders.

Deputy President Gostencnik concluded that TasTAFE had made out an arguable case with some reasonable prospect of success on the merits of its appeal, particularly concerning the construction of the statutory provisions. Given the arguable nature of the appeal grounds and the potential for significant difficulties if the consolidation orders were not stayed, the Deputy President found that the balance of convenience favoured the grant of a stay in each case. Consequently, the Deputy President ordered that the consolidation orders made by Commissioner Lee be stayed pending the hearing and determination of the appeals.

The Fair Work Commission issued stay orders in both appeals, effectively halting the implementation of the consolidation orders until the appeals are heard and determined. These orders were published on 30 March 2023.

Orders