The Australian Workers' Union v Esso Australia Pty Ltd
[2015] FWCFB 2049
•8 MAY 2015
The attached document replaces the document previously issued with the above code on 8 May 2015.
This version corrects typographical errors in the endnotes.
Shomaice Zowghi
Associate to Vice President Catanzariti
Dated 11 May 2015.
| [2015] FWCFB 2049 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Esso Australia Pty Ltd
(C2015/1823)
VICE PRESIDENT CATANZARITI | SYDNEY, 8 MAY 2015 |
Appeal against an ex tempore decision and order [PR561142] of Deputy President Hamilton at Melbourne on 17 February 2015 in matter number C2015/1709.
[1] This is an appeal by the Australian Workers’ Union (the Appellant) against an ex tempore finding 1 (Decision) and order2 (Order) made by the Deputy President in dealing with an application arising out of s.418 of the Fair Work Act 2009 (the Act).
[2] Prior to the hearing of the appeal on 11 March 2015, Ms Knowles of Counsel sought permission to appear for the Appellant and Mr Parry QC sought permission to appear for Esso Australia Pty Ltd (the Respondent). Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
Background
[3] The factual background of this matter involved certain employees (Employees) of the Respondent refusing to work overtime on two occasions. 3 The Employees were covered by the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2011 (Agreement). There was a factual contest at the hearing as to whether the refusal to work overtime was collective action by the Union and Employees or whether it was a coincidence that the Employees were not available to work overtime.
[4] At first instance, the Deputy President found that the requirements of s.418(1) were met and the refusal to work overtime by the Employees was organised and amounted to industrial action. Having made those findings, the Deputy President exercised his mandatory obligation to issue an order that the industrial action stop. The order was made for a 4 week period and handed to the parties at the hearing on 17 February 2015. On 18 February 2015, the Deputy President varied and re-issued the order to correct typographical mistakes, pursuant to its slip rule powers (Order).
Legislative framework
[5] Section 418 of the Act provides:
“FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.
Note: For interim orders, see section 420.
(2) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, FWA does not have to specify the particular industrial action.
(4) If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
[6] Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker. 4 An appeal may only be made with the permission of the Fair Work Commission (the Commission); there is no right to appeal.
[7] Section 604 of the Act provides:
“604 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 the Minimum Wage Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
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.”
The Appeal
[8] The Appellant advanced 16 grounds of appeal in the Notice of Appeal. These have been distilled into 14 grounds in their written submissions which are further grouped into 6 areas, 5 of which were amplified by oral submissions at the appeal hearing. We will briefly outline the Appellant’s and Respondent’s submission on each ground seriatim.
Grounds 1 and 2 - no service effected on employees and denial of procedural fairness
[9] The Appellant submitted that the exercise of the power to make the Order required that the Employees be given the opportunity to be heard in respect of the Application. 5 In the Appellant’s submission, by making the Order against the Employees in circumstances where the Employees had not been served with the application for the Order and were not afforded the opportunity to provide evidence and to make submissions about the making of the Order against them individually, the Deputy President failed to provide the Employees with procedural fairness. 6 The Appellant submitted that due to the failure to serve the Employees and to provide them with procedural fairness, the Order was invalid.7
[10] The Respondent submitted that the Deputy President found that service on Employees had been effected in the ‘usual way’ 8 which was a reference to the Union representing its members throughout the bargaining process and the Appellant did not challenge this. The Respondent submitted that it was sufficient that an application for an order made under s.418 be served on the Union.9 The Deputy President raised the issue, heard the argument and made a finding about it and as such, the Commission was entitled to assume that the interests of individual Employees were represented adequately by their union, as had previously occurred. Moreover the Respondent contended that no submissions were made to the effect that notice to any individual employee would have made any difference to the Commission’s decision.
Ground 3 - ex parte order not essential
[11] The Appellant submitted that an ex parte order should not be made unless time makes it essential. The Appellant submitted that the Deputy President erred in making an order for final, rather than interim relief, in circumstances where the criteria for the making of ex parte orders had not been met and time did not make a final order essential. 10
[12] The Respondent submitted that this ground is misconceived as the matter proceeded inter parties, not ex parte. The Respondent submitted that whether or not the Employees had received sufficient notice of the proceedings, the hearing was conducted on the basis that they were represented.
[13] Moreover, the Respondent submitted that the jurisdictional basis for the Commission to make an interim order was absent. The Commission will only make an interim order if it is unable to determine the application within two days after it was made. The Commission was able to determine the application within two days, so it could not make an interim order. In any event, the Respondent submitted that the Appellant made no application for an adjournment, nor made an application for an interim order under s.420(2).
Ground 4-6 - Order cannot bind employees not involved in industrial action and Order must relate to the relevant industrial action
[14] The Appellant submitted that the Deputy President erred in making the Order against all Employees in circumstances where there was there was uncontroverted evidence that at least two of the Employees refused overtime for non-industrial purposes. 11 Given that the Deputy President did not make a finding that industrial action was happening on account of the actions of each Employee, the Appellant Submission the order purporting to bind each of the Employees exceeded the Deputy President’s power to make it.12
[15] The Appellant further submitted that the Commission’s power is limited to making an order pertaining to the industrial action which was the subject of the application before it. 13 The Industrial Action as defined in the Order includes any industrial action as prescribed by s. 19 of the Act; it is not limited to the alleged industrial action which was the subject of the application before the Deputy President. The Appellant submitted that the Order that the Industrial Action be stopped was beyond the Deputy President’s power.
[16] The Respondent submitted that the possibility that not every Employee’s reason for refusing overtime was due to the industrial action does not invalidate the conclusion that industrial action was happening. In the Respondent’s submission, the Order did not have to be restricted to those Employees who had taken some positive action to participate in the industrial action.
[17] Moreover, the Respondent submitted that the authorities do not support the Appellant’s argument as the Commission does not have to specify the particular industrial action for the purposes of s.418. 14 The Respondent submitted that, if stop orders were required to be drafted so narrowly so as to extend only as far as the action which prompted the application, the purpose of s.418 would be frustrated because parties could simply slightly modify the nature of their industrial action and thereby continue to take similar unprotected action without risking contravention proceedings.
Ground 7-10 - Orders against all representatives of the Appellant were beyond the Commission’s powers
[18] The Deputy President purported to make the Order against all “delegates, officers, employees and agents of the AWU”. In the Appellant’s submission, the Order binds:
(a) any delegate of the Appellant irrespective of whether such delegate has any connection to the Respondent or the Employees; and
(b) any officer, employee or agent of the Appellant irrespective of what position that person may hold (including, therefore, administrative employees) or what role any such an agent might have.
[19] The Appellant submitted that the Commission did not have the power to make a stop industrial action order, which in the form of injunctive relief, purported to bind such persons irrespective of whether those persons had any knowledge of or concern with the alleged industrial action which was the subject of the application before the Commission. 15 The Appellant submitted that the making of the Order was beyond the Commission’s power.16
[20] In tandem with this submission, the Appellant contended that the Deputy President erred in ordering “that delegates, officers, employees and agents of the appellant not organise any Industrial Action” as it was beyond the scope of the alleged industrial action which was the subject of the application before the Commission. The Appellant submitted that the Order binds any delegate, officer employee or agent of the Appellant in respect of any industrial action prescribed by s.19 of the Act irrespective of whether they have any connection to the Respondent or the Employees. As such, the Appellant submitted that the making of the Order was beyond the Commission’s powers.
[21] The Respondent submitted that the Appellant is a corporate entity and pursuant to s.644 of the Fair Work (Registered Organisations) Act 2009 (the FWRO Act), and as suchits actions are those of its employees, delegates, officers and agents. Pursuant to s.297 of the FWRO Act, its officers and employees are bound not to do anything which would cause it to contravene any order of the Commission. As such, the Respondent submitted that it is within the scope of a stop order that delegates, officers, employees and agents of a union be prohibited from organising industrial action. The Respondent submitted that the purpose of the Order would be frustrated if rogue delegates or employees, perhaps with no pre-existing direct connection to the Respondent company, were able to organise non-protected industrial action.
[22] The Respondent further submitted that no injustice to delegates, officer, employees or agents of the Appellant arises from prohibiting them from organising unprotected industrial action, even if they have no direct connection to the Respondent company.
[23] In the alternative, the Respondent submitted that if the ground of appeal was upheld, the Order could be varied and reissued to correct any technical deficiency pursuant to section 607(3)(a) of the Act to remove the reference to “agents”. 17
Ground 11-12 - Order is uncertain and therefore invalid
[24] In the Order, the deputy President defined Industrial Action to include:
“a ban on the performance of overtime contrary to the Esso (Longford and Long Island Point) Enterprise Agreement 2011 and contrary to custom and practice regarding availability for and the performance of overtime.”
[25] The Appellant submitted that the Order lacks the necessary clarity to enable an employee to know what they must do (or not do) in order to comply with the Order because the meaning of ‘custom and practice’ is uncertain. On this submission, the Order is uncertain and therefore invalid.
[26] The Appellant further submitted that the definition of Industrial Action found in the Order may contravene the Employees entitlements under the National Employment Standards (NES). In particular, the Order may contravene the Employees entitlement under s.62 Maximum Weekly Hours in the Act pursuant to which, in determining whether additional hours are reasonable, the individual circumstances of an employee must be taken into account.
[27] The Respondent submitted that this point should not be allowed to be raised on appeal as it was not raised below 18 and in any event there is no uncertainty in the order. The Respondent submitted that the text of the proposed order was served on the Appellant and the Appellant made submissions in relation to this very paragraph of the Order but did not suggest that it was unclear.19 Moreover, the Respondent submitted that there is no conflict between the Order and s.62 of the Act as nothing in the Order empowers the Respondent to require an employee to work unreasonable overtime and nothing limits an employee’s right to refuse to work unreasonable overtime.
Ground 14 - inadequate reasons
[28] The Appellant submitted that the Commission has a duty to give adequate reasons for its decisions. 20 The Appellant submitted that the Deputy President erred by not giving reasons, or in the alternative, not giving adequate reasons, for his decision to make the order:
(a) against all of the Employees;
(b) that the Employees not engage in Industrial Action (as broadly defined in the Order);
(c) against all delegates, officers, employees and agents of the Appellant;
(d) that delegates, officers and agents of the Appellant not organise Industrial Action (as broadly defined in the Order); and
(e) final, rather than interim relief.
[29] The Respondent submitted that the Decision clearly set out the evidence the Deputy President relied on, the resolution of any conflicts in the evidence, and his process of reasoning in coming to the view that industrial action was happening. 21 The Commission’s duty to give reasons relates to the matters presented for determination and not the resolution of matters not placed in issue.22 The Respondent submitted that the matters raised in the Appellant’s submissions in ground 14 were not raised before the Deputy President.23
Permission to Appeal and the public interest
[30] The Appellant submitted that it is in the public interest for the Commission to grant permission to appeal for the 3 following reasons:
1. The making of the Order against the Employee raises issue of general importance and application regarding the procedural fairness required when making an order of the Commission against a person, including whether that order should be made on an interim or final basis;
2. The making of the Order against all delegates, officers, employees and agents of the Appellant, raises issues of general importance and application regarding the breadth of permissible orders when making an order of the Commission against a representative of an organisation; and
3. The decision raises issues of general application and importance regarding the scope of permissible orders when the Commission makes a s.418 order to stop industrial action.
[31] The Respondent submitted that no arguable case of appealable error has been indentified and no substantial injustice would result if permission were refused. Furthermore, the Respondent submitted that the public interest has not been enlivened as the Appellant has made no attack on the Commission’s conclusion that industrial action was happening and no alternative evidence could be led to obtain a different outcome. In such circumstances, the Respondent submitted that the appeal should be dismissed even if error was shown 24 or in the alternative, for the Order to be varied to reflect the findings.25
Stay
[32] The Appellant seeks a stay against the whole of the Order, for which the stop period remains until 17 March 2015. The Appellant submitted that this stay should be granted on the basis that the Order currently purports to bind persons who have not been afforded procedural fairness in respect of the Order and those who have no connection with the alleged industrial action which was the subject of the application and the Order is on-going.
Consideration
[33] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the public interest to do so. 26 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,27 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[34] We are not minded to grant permission to appeal on the basis of any of the grounds advanced by the Appellant for the reasons below.
[35] First, absent error on the part of the primary decision-maker, the appeal process is not intended to provide an avenue for an unsuccessful party to re-run their case or redress deficiencies in the manner in which their case was run at first instance. 28
[36] Second and in relation to grounds 1-2, reviewing whether or not procedural fairness was afforded involves the Full Bench placing itself in the shoes of the Commission as constituted at first instance. We must then determine whether the procedure adopted was fair and reasonable in light of the constraints imposed by s.418(1). What is fair and reasonable depends on the circumstances known to the Commission at first instance. We note that the Appellant did not challenge the method of service during the proceedings. We consider that the method of service was reasonable in the circumstances. Serving Orders on every individual employee in circumstances where those employees are represented by a Union in the proceedings is not practical or necessary for service to be effected. 29 We are not persuaded that the Appellant was denied procedural fairness. In the circumstances of the matter before us, the Commission was clearly entitled to assume that the interests of individual employees were represented adequately by their union, as had previously occurred.
[37] Third, we do not find that the order is beyond the powers of the Commission for any of the reasons put forward by the Appellant. In relation to grounds 4-6, s.418 requires the Commission to make a finding as to whether there is industrial action occurring. It has never been the position under s.418 of the Act or its various predecessors that the employer has to identify each and every employee who actually engaged in or threatened to engage in industrial action. The Deputy President clearly found at first instance that there was a collective refusal to perform or accept overtime and therefore industrial action occurred. This finding was open to the Commission on the evidence. Once that finding was made, it was appropriate for an order to be addressed to all employees of Esso not to engage in the industrial action as specified. We also find that it was appropriate for the Order to be directed at the delegates, officers, employees and agents. Reference to such entities is included in stop orders by the Commission for the purpose of creating an order that has a rational and logical tendency to stop or prevent the industrial action that has been found occurring. 30 The Order made was appropriate, logical and within the power of the Commission to make.
[38] Fourth, we do not find that there is any uncertainty in the Order in relation to the use of the words ‘custom and practice’. The phrase is very commonly used in industrial instruments, contracts and various industrial and employment documents. Indeed the parties in this matter used precisely those words in conference the week preceding the first instance hearing when coming to an agreement about working overtime in accordance with the Agreement’s custom and practice. As the Respondent correctly pointed out in its submissions, Mr Steed, the Union delegate involved, had no difficulty in describing the custom and practice of how overtime worked when giving evidence as a witness during the matter at first instance. 31 We do not find that there is any uncertainty in the Order.
[39] Fifth, a failure to give reasons does not mean in every circumstance that a tribunal has failed to consider a matter before it. 32 In any event, the matters for which the Appellant claims adequate reasons were not given were mostly matters not raised at first instance. The Commission is only required to give reasons relating to the matters before it for determination.33 We do not find that there was a failure to give reasons.
[40] Finally, in circumstances where the period for the stop order expired on 17 March 2015, no substantial injustice will result if permission to appeal is not granted. 34
Conclusion
[41] We do not consider that the Appellant has demonstrated that it is in the public interest to grant permission to appeal.
[42] We find that the Deputy President’s Decision and the Order were not affected by error and were open to him on the evidence.
[43] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
F Knowles of Counsel and L Bunting for the Appellant.
F Parry QC and R O’Neil of Counsel for the Respondent.
Hearing details:
2015
Melbourne.
March 11.
1 Esso Australia Pty Ltd v The Australian Workers’ Union (C2015/1709), Transcript, 17 February 2015.
2 PR561142.
3 Decision, PN14-21.
4 Coal and Allied v AIRC (2000) 203 CLR 194 at 203–4 per Gleeson CJ, Gaudron and Hayne JJ.
5 Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 (6 March 2008) at [44].
6 Ibid at [43].
7 Ibid at [41]-[44]; Maritime Union of Australia and Others v Patrick Stevedores Operations Pty Ltd and Anor [1988] 4 VR 143 at p119.
8 PN 681
9 Victorian Hospitals’ Industrial Association v Health Services Union [2008] AIRCFB 311 at [25]; Department of Education v ANU[2010] FWA 3775.
10 We note that this ground was not pressed by the Appellant during oral submissions but we have included it for completeness.
11 The reasons given in one case was that the employee was away in Melbourne and, in another case, that the employee’s daughter was having her wisdom teeth out; see Transcript PN206-207 at p27 of the Appeal Book, Tab 3.
12 Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 (6 March 2008) at [47]-[48].
13 Ibid at [38]-[39].
14 Victorian Hospitals’ Industrial Association v Health Services Union [2008] AIRCFB 311 at [18]; Australian Manufacturing Workers Union v UGL Resources Pty Ltd (2011) 214 IR 237.
15 Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 (6 March 2008) at [56]; Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Limited[2013] FWCFB 7736 (11 October 2013) at [47]; Maritime Union of Australia and Others v Patrick Stevedores Operations Pty Ltd and Anor [1998] 4 VR 143.
16 Maritime Union of Australia and Others v Patrick Stevedores Operations Pty Ltd and Anor [1998] 4 VR 143 at p119.
17 The full bench allowed the order to be varied in Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Limited[2013] FWCFB 7736 (11 October 2013) at [54].
18 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418.
19 PN 494.
20 Barach v University of New South Wales (2010) 194 IR 259 at [16].
21 PN 681-693 of the ex tempore reasons.
22 Edwards v Giudice; Huntsman Chemical Company Australia Pty Limited v Narellan Pools Pty Limited [2011] FCAFC 7, [44].
23 Respondent’s written submissions at [41].
24 CEPU v Abigroup, [153]; Stead Government Insurance Commission (1986) 161 CLR 141; Bisely Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233.
25 Maritime Union of Australia and Others v Patrick Stevedores Operations Pty Ltd and Anor [1998] 4 VR 143.
26 Fair Work Act 2009, s.604(2).
27 [2010] FWAFB 5343 at [27].
28 Melbourne Stadiums Ltd v Sauter [2015] FCAFC 20 at [128]; Esso Australia Pty Ltd v Australian Workers Union & Ors[2015] FWCFB 210 at [17] (citing KA Murphy v SF Finance Pty Ltd (unreported, Print P1395, AIRCFB, 29 May 1997); Curtis v Darwin City Council (2012) 224 IR 174 at [80]).
29 Pryor and Another v Coal & Allied Operations Pty Ltd (1997) 78 IR 300 at 305; Transport Workers Union of New South Wales v Australian Industrial Relations Commission and Others [2008] FCAFC 26 at [45]; Victorian Hospitals’ Industrial Associations v Health Services Union [2008] AIRCFB 311.
30 The words and references to delegates, officers and employees in particular, have a long history in section 496, section 127 and section 418 of the Act.
31 Decision, PN303.
32 Bat Advocacy New South Wales Inc v Minister for Environment Protection, Heritage and the Arts (2011) 179 LGERA 458 at [93]-[100] (endorsed as application to the Commission’s tribunal functions in Soliman v UTS (2012) 207 FCR 227 at [54].
33 Edwards v Giudice; Huntsman Chemical Company Australia Pty Limited v Narellan Pools Pty Limited [2011] FCAFC 7, [44].
34 Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025 at [11] and [12] referring to Wan v Australian Industrial Relations Commission (2001) 116 FCR 481; [2001] FCA 1803; BC200108538 at [30].
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