The Australasian Meat Industry Employees' Union v Primo Foods Pty Ltd
[2024] FWCFB 304
•10 JULY 2024
| [2024] FWCFB 304 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
The Australasian Meat Industry Employees’ Union
v
Primo Foods Pty Ltd
(C2024/781)
| DEPUTY PRESIDENT SAUNDERS | SYDNEY, 10 JULY 2024 |
Appeal against decision [2024] FWC 165 of Vice President Asbury at Brisbane on 19 January 2024 in matter number C2021/4501 – permission to appeal refused.
Introduction and background
The Australian Meat Industry Employees’ Union (AMIEU) is covered by the Primo Foods Pty Ltd – JBS Primo Wacol Enterprise Agreement 2019 (2019 Agreement). Primo Foods Pty Ltd (Primo) is also covered by the 2019 Agreement. The 2019 Agreement includes a dispute resolution procedure that permits the Commission to resolve disputes by arbitration. Vice President Asbury in her decision of 19 January 2024 [2024] FWC 165 (Decision) resolved a dispute in accordance with that procedure. The AMIEU seeks permission to appeal and to appeal that decision.
The dispute that was resolved was over the way that Primo was paying two employees who were members of the AMIEU. The dispute was over the correct base rate of pay applicable to leave entitlements for employees who worked and were paid for higher duties.
Mr Site Li was one of those employees. Mr Li was engaged as a level 2 Process Worker but for extended periods of time he performed the work of a level 5 employee. When required to perform the duties of a level 5 employee Mr Li was paid a higher duties allowance at the level 5 rate of pay. When he took personal/carer’s leave or was absent on public holidays he was paid at the level 2 rate. The AMIEU contended that he should have been paid the higher rate when absent on leave and public holidays. It contended that this followed because those entitlements are to be paid at an employee’s base rate of pay. Base rate of pay is defined in s. 16 of the Fair Work Act 2009 (Cth) (FW Act). The AMIEU maintained that Mr Li’s base rate of pay was at level 5 of the Agreement, and he should have been paid at the level 5 rate when taking his leave and public holiday entitlements.
The dispute was not resolved between the parties and the AMIEU referred it to the Commission under s. 739 of the FW Act. The Commission was empowered to conciliate and/or mediate a resolution in accordance with clause 3.10.6 of the 2019 Agreement. Where mediation and/or conciliation was unsuccessful, the Commission was also empowered to arbitrate a resolution to the dispute.
Following conciliation, the AMIEU no longer pressed the dispute over the other employee and the ongoing concern about Mr Li’s circumstances was resolved by Mr Li being reclassified as a level 5 employee. An issue remained however about payment for leave and public holidays during the period (the relevant period) in which Mr Li was classified at level 2, worked and was paid higher duties at level 5, but paid whilst on leave and public holidays at level 2. That issue was referred to arbitration.
The question posed for resolution of the dispute was:
For the purpose of s. 16 of the FW Act, what was Mr Site Li’s base rate of pay during the periods of personal/carer’s leave and public holidays taken between September 2019 and September 2021?
The relevant period commenced in September 2019 which was prior to the 2019 Agreement commencing. Consequently, it required consideration of the predecessor agreement, the Hans Continental Smallgoods Pty Ltd Enterprise Agreement 2016 (the 2016 Agreement). The terms of the 2016 Agreement were relevantly the same as those in the 2019 Agreement, although the clause numbering differed. In dealing with the dispute the Vice President considered the relevant terms in both agreements.
In the Decision the Vice President determined that Mr Li’s base rate of pay for the purposes of s. 16 of the Act, whilst engaged as a Level 2 employee and working at higher duties, was the level 2 rate of pay[1]. The Vice President found that the higher duties payment provided by clause 5.3 of the 2019 Agreement (and clause 5.2.5 of the 2016 Agreement) was a separately identifiable amount and was expressly excluded from the definition of base rate of pay by s. 16(1)(e) of the Act[2].
Permission to appeal
Section 604 of the FW Act allows for appeals of decisions by Commission members and states:
Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made under the Registered Organisations Act by the General Manager (including a delegate of the General Manager);
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
An appeal under s 604 is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[3] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Permission must be granted if it is in the public interest to do so and may be granted by discretion in other circumstances.
The task of assessing whether the public interest is met is a discretionary one involving a broad value judgment.[4] The public interest is not satisfied simply by the identification of error or a preference for a different result.[5] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[6] Permission can also be granted on grounds other than the public interest.
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[7] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal[8] Permission to appeal will rarely be granted in order to allow an appellant to argue a case on appeal which it did not raise at first instance[9].
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[10] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration – Permission to Appeal
The AMIEU submitted that permission to appeal should be granted on three grounds. First, that the Decision is attended with sufficient doubt to warrant its reconsideration. Second, that the Decision gives rise to a substantial injustice as it allows employers to classify an employee at one level and have them perform higher duties but pay them less when taking leave and public holidays. Third, the appeal raises issues going to the better off overall test when approving enterprise agreements.
The latter two grounds for permission to appeal can be dealt with briefly. The Decision does not allow employers generally to engage in the conduct asserted. The Decision dealt with a specific dispute that arose under a single enterprise agreement. It was confined to its facts. There was nothing in the proceedings, or before us on the appeal, to suggest a general practice of engaging employees on a lower rate, requiring work to be performed at a higher classification but only paying a higher duties allowance for working hours. If there was, permission might be justified on public interest grounds. But there was not, and we do not grant permission to appeal on that basis. Similarly, the matter at first instance was not about the application of the better off overall test. The AMIEU raised the better off overall test as a contextual matter in aid of its construction argument and the argument was addressed by the Vice President. The Decision however does not raise the issue as to the standard required for an agreement to meet the test. There is no basis for granting permission to appeal on this ground.
The appeal goes to one question, whether the Vice President answered the question posed for arbitration correctly. In its notice the AMIEU identifies 9 grounds of appeal. Grounds 1 to 3 and 9 assert that the Vice President should have found that for the purposes of s. 16 of the Act Mr Li’s base rate of pay was the level 5 rate of pay in the 2019 Agreement. The grounds go directly to the question posed by the AMIEU at first instance. That question required consideration of the proper construction of clause 5.3 of the 2019 Agreement (and cl 5.2.5 of the 2016 Agreement) and s. 16 of the FW Act. The question on appeal, if permission is granted, is simply whether the answer given by the Vice President was correct.
By these grounds the AMIEU seeks to re-argue its case at first instance. The question posed for the arbitration required a determination of whether the higher duties payments made in accordance with the terms of the Agreements were separately identifiable amounts for the purpose of s. 16 of the Act. The Vice President considered that question and concluded that the payments were separately identifiable amounts. In the course of making this determination the Vice President set out the AMIEU’s arguments at [32] to [38] of the Decision. No complaint is made that the Vice President failed to consider all of the arguments put at first instance. The Vice President considered those arguments by considering first the correct construction of the enterprise agreement (at [52] to [69]) and the relevant provisions of the FW Act (at [70] to [82]). The Vice President considered these matters together by reference to the case advanced by the AMIEU (at [83] to [86]) and concluded that as Mr Li was classified as a Level 2 Process Worker during the relevant period and his base rate of pay for the purpose of the Agreement and the FW Act was the level 2 rate of pay (at [87]). Consequent upon this finding he was not entitled to the level 5 rate of pay while absent on leave and public holidays.
First, we see no error in the Vice President’s Decision. Based on the arguments put to the Vice President, and the arguments put on appeal, we consider the outcome to be correct. Secondly, the Decision does not raise any issue of public interest. It is confined to the circumstances of a single employee, working at a single factory under an enterprise agreement that covered one employer. The Decision did not have an impact beyond the parties to the dispute. We can see no basis in the public interest nor otherwise to grant permission to appeal. Consequently, we refuse to grant permission to appeal in relation to grounds 1, 2, 3 and 9.
Grounds 4 to 8 assert that the Vice President should have found, on the facts before her, that Mr Li’s contract of employment was varied by conduct such that he was classified and entitled to be paid as a level 5 employee. Had the Vice President so found the answer to the question would be that Mr Li’s base rate of pay during the relevant period was at Level 5. These grounds depart from the way the case was run at first instance. If the AMIEU wanted to bring a case based on misclassification or on the basis that there had been a variation to Mr Li’s contract it was free to do so. It chose not to. Had it done so Primo may well have conducted its case differently. Instead, the AMIEU ran its case on the basis of the construction of the Agreements and s. 16 of the FW Act. That is the case met by Primo and the case dealt with by the Vice President.
We see no reason to depart from the usual principle that permission to appeal should not be granted to allow an appellant to argue a case on appeal which it did not raise at first instance. This is especially so where the respondent might have adduced evidence about the matters now proposed to be canvassed on appeal had they been agitated at first instance. There is no public interest in granting permission to appeal in the circumstances and we see no other reason to grant permission to appeal to allow the AMIEU to advance a new case. We refuse permission to appeal on grounds 4 to 8 in the AMIEU’s notice of appeal.
Conclusion
We consider that it is not in the public interest to grant permission to appeal. Nor is there any other basis on which permission to appeal should be granted. The conclusion of Vice President was correct on the case brought before her. No appealable error has been demonstrated. Equally we do not consider there is any discretionary basis to grant permission to allow the AMIEU to advance a new case on appeal.
For the reasons given above, we refuse permission to appeal.
DEPUTY PRESIDENT
Appearances:
Mr B. Swan, National Industrial Officer, for the Australasian Meat Industry Employees Union
Mr J. McLean, of counsel, for JBS Australia Pty Ltd
<PR776849>
[1] Decision at [83]
[2] Decision at [84]
[3] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
[4] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; 241 IR 177 at [28]
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[7] Wan v AIRC (2001) 116 FCR 481 at [30]
[8] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [28]
[9] Nilsen (SA) Pty Ltd v CEPU[2016] FWCFB 3119 at [13]- [15]; Romic v Blacktown City Council[2020] FWCFB 6098 at [16]
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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