TasTAFE v United Workers' Union
[2023] FWC 811
•4 APRIL 2023
| [2023] FWC 811 |
| FAIR WORK COMMISSION |
| REASON FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
TasTAFE
v
United Workers’ Union
(C2023/1713)
TasTAFE
v
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 affected by the order” – in paragraph 4(a)(i). Second, in connection with the meaning and application of the requirement that the Commission take into account – “the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer” as set out in paragraph 4(f).
TasTAFE contends that the Commissioner’s construction and approach to both those provisions was erroneous. As to the first of the matters, the Commissioner concluded that the expression ‘the employees who would be affected by the order’ encompasses a consideration of the views of both the transferring and the non‑transferring employees as both would or would likely be affected by the order.
It seems to me it is at least arguable that the contrary construction, a more confined construction, is available. As to the second matter having regard to Mr O’Farrell’s earlier submission, which I will not repeat, I consider that it is at least arguable that the Commissioner’s approach or construction of paragraph 4(f) was erroneous. Both those matters raise constructional issues which are both arguable and, therefore, are likely to at least engage the public interest in granting permission to appeal. If not, there is reasonable prospect that the constructional appeal grounds would likely give rise to the Commission exercising its discretion to allow permission to appeal.
As I have already indicated, both contentions of construction error are arguable and it cannot be said that the appeal proper has no, or no reasonable, prospects of success; each appeal has some prospects of success. Mr O’Farrell described the prospects as very good or as high prospects of success. I do not need to go that far, and I would simply observe that the issues raised by TasTAFE in the constructional appeal grounds are arguable. That there is an arguable case with some reasonable prospect of success, both as to permission to appeal and the merits of the appeal weighs in favour of the grant of a stay in each case.
As to the balance of convenience, TasTAFE relies on a statutory declaration from Mr Timothy Witt, which I have marked as exhibit 1 in these proceedings. Mr Witt is the industrial relations manager employed by TasTAFE. He sets out some legal consequences that might arise in the event that the consolidation orders are not stayed and TasTAFE is subsequently successful in its appeal.
Whilst I do not accept every proposition Mr Witt sets out in his statutory declaration, it is self‑evidently the case that if TasTAFE is required to implement a set of terms and conditions for a group of employees and later the legal obligation to do so is set aside, that that will create some difficulty in unwinding the position. I also accept Mr O’Farrell’s contention that the fact that the respondents in each appeal –the AEU and the UWU – do not oppose the grant of a stay are also matters that weigh in favour of a finding that the balance of convenience favours the grant of a stay.
Taking those two matters into account, I am satisfied that the balance of convenience in this case favours the grant of a stay in each appeal. Given my earlier conclusion as to the prospects on appeal and the prospects of obtaining permission to appeal, I consider a stay order in each case should be made. There are no issues of a discretionary kind which weigh against the exercise of my discretion to issue such orders and I propose to do so.
In C2023/1715, I order that pending the hearing and determination of the appeal or further order, the order made by Commissioner Lee, on 24 March 2023, in PR760520 be stayed. In C2023/1713, I order that pending the hearing and determination of this appeal or further order, the order made by Commissioner Lee, on 24 March 2023, in PR750522 be stayed.
Written stay orders were published in each case on 30 March 2023 in PR760740 and PR760741.
DEPUTY PRESIDENT
Appearances:
Mr M O’Farrell SC with Mr M Jehne appeared for TasTAFE
Mr S Smith appeared for the Australian Education Union
Mr J Katarzynski appeared for the United Workers’ Union
Hearing details:
2023
Melbourne (via Microsoft Teams)
30 March.
Printed by authority of the Commonwealth Government Printer
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