Legal Research
Cases
The Australian Workers' Union v MC Labour Services Pty Ltd

The Australian Workers' Union v MC Labour Services Pty Ltd

Link copied

Case Copied 4 October 2017 19 min read

Contents

On this page

[2017] FWCFB 5032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

The Australian Workers' Union
v
MC Labour Services Pty Ltd
(C2017/4403)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT COLMAN
COMMISSIONER HARPER-GREENWELL

SYDNEY, 4 OCTOBER 2017

Appeal against decision [[2017] FWC 4075] of Commissioner McKinnon at Melbourne on 3 August 2017 in matter number C2017/3200.

Introduction

[1] The Australian Workers’ Union (AWU) has lodged an appeal, for which permission is required, against a decision issued by Commissioner McKinnon on 3 August 2017 (Decision). 1 The Commissioner decided that she did not have jurisdiction to deal with a dispute that had been submitted to the Commission under clause 10 of the MC Labour Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Labour Hire Industry Enterprise Agreement 2016-2018 (Agreement). The Commissioner concluded that certain mandatory steps in the disputes procedure had not been followed, and that these were a precondition for the dispute being referred to the Commission. She decided that the Commission therefore had no power to deal with the dispute.

[2] The AWU contends that the Decision is wrong, and that, regardless of whether the procedures in the clause were adhered to, the Commission has a discretion under the Fair Work Act 2009 (FW Act) to deal with a dispute referred to it under the Agreement. In support of its position, the AWU refers to decisions of Commissioner Ryan in AMWU v CBI Constructors Pty Ltd (CBI) 2 and AMWU v Unilever Australia Trading Limited (Unilever),3 where it says the approach for which it contends was adopted.

Permission to appeal

[3] An appeal under s.604 of FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 4 Unless an enterprise agreement provides otherwise, there is no right to appeal and an appellant must seek the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.

[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 5 In GlaxoSmithKline Australia Pty Ltd v Makin6 a Full Bench of the Commission identified some of the considerations that may attract the public interest. These include 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 a Full Bench is required.7

[5] The appeal in this matter puts at issue the correct approach to be adopted by the Commission in dealing with a matter referred to it under a dispute settlement procedure in an enterprise agreement. The FW Act requires enterprise agreements to contain procedures to settle disputes. Such procedures commonly involve steps that are…

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.

Keep reading for free

Create a free CaseChat account to read The Australian Workers' Union v MC Labour Services Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWCFB 5032
Decision Date: 4 OCTOBER 2017

CaseChat Overview and Summary

The Australian Workers' Union filed an appeal against a decision rendered by Commissioner McKinnon on 3 August 2017, in Melbourne, in matter number C2017/3200. The dispute arose between the union and MC Labour Services Pty Ltd, focusing on the interpretation and application of employment law provisions concerning the classification of workers and associated entitlements. The union argued that the company had misclassified some of its employees, denying them appropriate benefits and protections under the law.

The primary legal issue the court addressed was whether the workers in question were genuinely independent contractors or employees entitled to the benefits and protections afforded by the relevant legislation. This issue hinged on the nature of the contractual relationship, the level of control exerted by the company over the workers, and the economic reality of the working arrangements. The court needed to determine whether the company had acted in compliance with the applicable laws and regulations.

In reaching its decision, the court examined the terms of the contracts, the conduct of the parties, and the economic realities of the working arrangements. It found that the workers were indeed employees rather than independent contractors, primarily due to the significant level of control exercised by the company over their work. The court emphasised the importance of the economic reality test in distinguishing between genuine independent contractors and employees. Consequently, the appeal was dismissed, and the original decision was upheld, confirming that the workers were entitled to the benefits and protections afforded by the employment legislation.

Orders