United Firefighters' Union of Australia v Australian Capital Territory as represented by the Emergency Services Agency (ESA)
[2020] FWCFB 2485
•19 MAY 2020
| [2020] FWCFB 2485 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604—Appeal of decision
United Firefighters’ Union of Australia
v
Australian Capital Territory as represented by the Emergency Services Agency (ESA)
(C2020/1205)
VICE PRESIDENT CATANZARITI | SYDNEY, 19 MAY 2020 |
Appeal against decision [2020] FWC 890 of Deputy President Kovacic at Canberra on 21 February 2020 in matter number C2018/7204 – application for permission to appeal and appeal – alleged dispute about a matter arising under an enterprise agreement – whether dispute validly filed – whether steps in the dispute settlement procedure followed – jurisdictional objections – proceedings in Federal Court about the same subject matter – original dispute resolved – jurisdictional objections dismissed – utility of appeal – no public interest – permission to appeal refused.
BACKGROUND
[1] The United Firefighter’s Union of Australia (the ‘Union’, ‘UFA’ or the ‘appellant’) has appealed a decision of Deputy President Kovacic; Australian Capital Territory as represented by the Emergency Services Agency (ESA) v United Firefighters' Union of Australia[2020] FWC 890 (the ‘Decision’) of 21 February 2020. The Decision concerned number of jurisdictional objections of the Union to an application, filed by the Australian Capital Territory as represented by the Emergency Services Agency (‘ESA’ or the ‘respondent’), pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’). The original ESA dispute application concerned the parties’ obligations in respect to Cl 118.6 - the steps found in the dispute settlement process (DSP) of the ACT Public Sector ACT Fire and Rescue Enterprise Agreement 2013-2017 (the ‘Agreement’). Shortly stated, the Deputy President dismissed the Unions’ jurisdictional objections and concluded at [45] of the Decision:
‘[45] For all the above reasons, I find that the requirements in clause 118.6 of the Agreement are satisfied such that it was open to the Applicant to refer the matter to the Commission “for mediation and/or conciliation and, if these processes fail, arbitration”. Accordingly, the Respondent’s jurisdictional objection is dismissed.’
[2] By its Notice of Appeal filed on 2 March 2020, the Union applied for permission to appeal and appeals the Decision, pursuant to s 604 of the Act. We listed the hearing of the appeal on 20 April 2020, by telephone, given the restrictions on in person proceedings due to the ongoing COVID-19 pandemic. Mr W Friend of Counsel, with Ms S Bingham of Counsel, appeared for the appellant, and Mr A Pollock of Counsel appeared for the respondent. We granted permission for both parties to be legally represented, pursuant to the provisions of s 596 of the Act.
The Agreement’s Dispute Avoidance/Settlement Procedure (the ‘DSP’)
[3] As earlier mentioned, the appeal concerns a number of jurisdictional objections of the Union as to whether the various steps in the Agreement’s DSP (Cl 118) had been complied with before the EMS lodged its s 739 application. It was the Union’s case that as the Deputy President had incorrectly characterised the dispute and that all of the steps in the DSP had not been followed, he could not proceed to deal with the dispute, because of the limitations on the Commission’s functions and powers under s 739 of the Act. It is necessary to set out below the detailed terms of Cl 118 of the Agreement:
‘118. Dispute Avoidance/Settlement Procedures
118.1 It is in the interests of all employees, the Head of Service and the UFU that the integrity of the terms and conditions set out in this Agreement are maintained. The objective of these procedures is the prevention and resolution of disputes about matters arising under this Agreement,including disputes about the interpretation or implementation of the Agreement, and the application of the National Employment Standards.
118.2 For the purposes of this clause, except where the contrary intention appears, the term parties refers to ‘parties to the dispute’.
118.3 The parties to the Agreement agree to take reasonable internal steps to prevent disputes and explore all avenues to seek resolution of disputes.
118.4 Pre-dispute work arrangements and patterns will apply during the dispute resolution process unless there is reasonable concern by the employee about an imminent risk to his or her health or safety. In these circumstances, employees will not work in an unsafe environment but, where appropriate, may accept reassignment to alternative suitable work consistent with their classification levels in the meantime.
118.5 A party may be assisted at any stage of the process by a representative of their choice (including an employee representative), and all relevant persons will deal with any such representative in good faith. This assistance includes notifying or advising any person or body of the existence of a dispute and speaking on behalf of the employee(s).
Resolution Process
118.6 In the event there is a dispute about matters arising under this Agreement,including a dispute about the interpretation or implementation of the Agreement the following steps will be applied.
Step 1: A dispute about the interpretation or implementation of this Agreement is identified by an employee or employees and notified to the manager.
Step 2: This step will commence within 7 working days of notification of the dispute or a longer timeframe agreed to by the parties if operational circumstances preclude commencement of this step. Where appropriate, the relevant employee(s) or their representative will discuss the matter with management. Should the dispute not be resolved, it will proceed to the next appropriate management level for resolution.
In instances where the dispute remains unresolved, the appropriate level of management and employee(s) or their representative(s) will be notified and a conference will be arranged and a course of action for resolution will be discussed.
Step 3: If the parties have not been able to resolve the dispute, the dispute may be referred by either party, or their representative, to FWC for mediation and/or conciliation and, if these processes fail, arbitration.
Role and Powers of FWC
118.7 For any dispute that is referred to FWC consistent with Step 3 of clause 118.6, the FWC has the role and powers set out in clauses 118.8 to 118.16.
118.8 For the purposes of the FW Act, the parties agree that FWC may give all such directions and do all such things as are necessary for the just resolution or determination of the dispute, subject to Chapter 5 Part 5-1 Division 3 of the FW Act. This may include, but is not limited to:
(a) inform itself in any manner that it thinks appropriate;
(b) taking verbal or written evidence on oath or affirmation, in chief and by cross examination;
(c) conducting a hearing, including a private hearing;
(d) holding a ballot of affected employees where in the opinion of the FWC such ballot may assist in the resolution of the dispute;
(e) meeting with any party separately during a conciliation but with the knowledge of the other party;
(f) summoning to appear before the FWC any party to the dispute, witnesses or persons whose presence the FWC believes would help in the resolution of the dispute;
(g) requesting the attendance before the FWC of any witness or person whose presence the FWC believes would assist in the resolution of the dispute;
(h) receiving documents and other material related to the dispute and compelling the production of documents and other material that relate to the dispute in hard or electronic form;
(i) determining the dispute in the absence of any party or person who has been notified of the dispute or who has been summoned to appear;
(j) convening a compulsory conference;
(k) giving directions in the course of or for the purpose of procedural matters relating to the dispute;
(l) making recommendations to the parties for the resolution of the dispute;
(m) deciding when conciliating is ended and arbitration is to begin;
(n) making interim decisions; and
(o) making final decisions.
118.9 To avoid doubt, the FWC does not have the power to:
(a) make an award in relation to the matter in dispute;
(b) make an order in relation to the matter in dispute; or
(c) appoint a board of reference.
118.10 In exercising any of the functions or powers set out above, the FWC will:
(a) apply the rules of natural justice, and ensure that the parties to a dispute have a reasonable opportunity to be heard;
(b) have regard to the FWC established principles for dealing with disputes and precedent decisions, including any precedent decisions in relation to the interpretation and application of this Agreement; and
(c) act according to equity and good conscience, and consider the merits of the case without regard to technicalities and legal form.
118.11 The FWC may dismiss or refrain from hearing a matter or part of a matter, which in the view of the FWC is vexatious.
118.12 A person may be assisted and represented at any stage in the dispute process on the same basis as applies to representation before the FWC under section 596 of the FW Act.
118.13 All persons involved in the mediation or conciliation or arbitration shall participate in good faith.
118.14 To assist in the decision making process, the proceedings before the FWC may be recorded and transcribed in the FWC.
118.15 Any decision or direction the FWC makes in relation to the dispute will be in writing and will be accepted by all affected persons, and the parties agree to comply with any decision or direction, be it final or procedural. Where relevant, a decision will be accepted as settlement of the dispute and will be complied with, subject to any right of appeal or review, which might exist.
118.16 The parties agree that any decision which alters the rights or responsibilities of the Head of Service, employees or UFU are enforceable in a Court of competent jurisdiction.
118.17 Notwithstanding the above, the parties may agree to submit the dispute to a body or person other than the FWC. To avoid doubt, an attempt to reach such an agreement is not a condition precedent to referring the dispute to the FWC. Where the parties agree to submit the dispute to another body or person, the parties agree that:
(a) all of the above provisions apply, unless the parties agree otherwise;
(b) references to the FWC in the above provisions will be read as a reference to the agreed body or person; and
(c) all obligations and requirements on the parties and other relevant persons in the above provisions shall be complied with.
Appeal of Decision or Direction
118.18 A Party to a dispute may apply to a Full Bench to appeal a decision of the FWC determining the dispute within 21 days of the FWC making that decision.
118.19 Where a party to a dispute has applied to appeal a decision or direction of the FWC pursuant to clause 118.18, a Full Bench or Presidential Member may, on such terms as the Full Bench or Presidential Member consider appropriate, direct that the operation of the whole or a part of the decision or direction concerned be stayed pending the determination of the appeal or until further decision or direction of the Full Bench or Presidential Member.
118.20 The Full Bench or Presidential Member will determine the appeal by conducting a review of the evidence of material before the FWC at first instance, and the reasons for the decision or direction given by the FWC at first instance. The Full Bench or Presidential Member may, with the agreement of the parties to the dispute, receive further evidence. The determination of an appeal may not proceed by way of a new hearing (hearing de novo).
118.21 On hearing of the appeal, the Full Bench may do one or more of the following:
(a) confirm, quash or vary the decision or direction concerned; or
(b) direct the member of the FWC, whose decision or direction is under appeal, or another member of the FWC, to take further action to deal with the subject matter of the decision or direction in accordance with the directions of the Full Bench.
118.22 In dealing with the appeal the Full Bench may exercise the functions in clause 118.8, other than subclauses (c), (e) and (j). The parties to the dispute agree that clauses 118.8 to 118.16 apply.
Note - reference to subclause (c) needs to be limited to private hearings only.
118.23 The terms of clause 118.15 will apply to decisions or directions made by the Presidential Member or Full Bench.
THE DECISION
[4] The Deputy President summarised the nature of the dispute at [2] as follows:
‘[2] In its application the ESA contended that the dispute concerns clauses 45.1, 45.3 and 149.3 of the Agreement. By way of background, clause 45 of the Agreement deals with rest relief after overtime, while clause 149 of the Agreement concerns fatigue management. The application identifies the relief sought as a decision by the Commission as to the proper interpretation of the clauses in dispute.’
[5] It is common ground that the dispute originated from a letter of demand from the appellant to the respondent of 6 December 2018 which the Deputy President set out at [8] and which reads:
‘We act on behalf of United Firefighters' Union of Australia ACT Branch (UFU), Andrew Donne, Kate Judd, Keith Rourke and Steve Geerdink.
The purpose of this correspondence is to draw to your attention serious ongoing breaches of the ACT Public Sector Act Fire and Rescue Enterprise Agreement 2013-2017 (the Agreement) and the Fair Work Act 2009 (the FW Act) which have resulted in underpayments to firefighters in your employ.
…
It has now come to the attention of the UFU that the ACT Fire and Rescue have not been abiding by the provisions of the Agreement and have failed to allow employees to have a rest break of 8 hours between shifts and when the break is less than 8 hours have failed to pay the appropriate rates of pay to the relevant employee.
Further a failure to accord firefighters a break of 8 hours between two consecutive shifts is in breach of clause 125 - Occupational Health and Safety of the Agreement.
…
Breaches and underpayment
We are instructed that ACT Fire and Rescue persistently fails to pay firefighters double time when they are required to perform duty and are accorded a rest period of less than 8-hours between shifts worked as required by the Agreement.
We attach to this correspondence a schedule setting out the underpayment in relation to the employees referred to above.
ACT Fire and Rescue have clearly breached the Agreement in refusing to pay these employees the correct rates of pay.
Accordingly, ACT Fire and Rescue have breached clauses 45.3, 149.3 and 125 of the Agreement and has consequently contravened s.50 and s.323 of the FW Act.
We now require that on or before 5:00pm 14 December 2018 the following occur:
1. The employees referred to in Schedule 1 of this letter be paid the underpayments amounts specified in the schedule.
2. ACT Fire and Rescue provide a written undertaking that:
(a) a pay roll and hours audit of all firefighters who were employed by the service in the past 6 years will take place for the purpose of ascertaining the extent of the underpayment in the current service.
(b) where underpayments have been identified by the audit that underpayment is immediately rectified by paying the identified employee immediately.
(c) it will in the future comply with ss.45.3 and 149.3 and ensure all firefighters are paid at the appropriate rates of pay as set out in the Agreement when they are not accorded the requisite 8-hour rest period.
If the above does not occur within the specified timeframe then proceedings will immediately be instituted in the Federal Court of Australia seeking compensation and penalties, without further notice to you.’ (emphasis in original) (footnote omitted)
[6] The respondent replied to this correspondence in a letter dated 13 December 2018 from Mr Mark Brown, Chief Officer ACT Fire and Rescue in which EAS sought to invoke the provisions of the DSP, by firstly, seeking a conference of the parties, and if this was refused, the matter would be referred to the Commission. The appellant rejected EAS’ view that the dispute concerned the application or the interpretation of the Agreement and asserted that rather, the Union’s letter of demand was a compliance and enforcement matter affecting the rights and available remedies concerning four of its named members, which could only be determined in the courts. Further, the matter could not be referred to the Commission for arbitration under Step 3, because Steps 1 and 2 had not been complied with. The respondent disagreed, and the s 739 application was filed in the Commission on 19 December 2018. The parties subsequently agreed the Union’s jurisdictional objections could be determined ‘on the papers’.
[7] The Deputy President set out the submissions of the parties and the affidavit evidence of the Union, from the appellant’s solicitor (Ms Davies) and the Secretary of the Union’s ACT Branch, Mr Greg McConville. He noted the reliance by both parties on the decision of the Full Bench of the Commission in The Australian Workers' Union v MC Labour Services Pty Ltd [2017] FWCFB 5032 (‘MC Labour’).
[8] After making some initial observations regarding Cl 118 of the Agreement at [27], the Deputy President focussed on Cl 118(6) dealing with the specific dispute resolution process, and posited four questions which he considered would determine the appellant’s jurisdictional objections as follows:
'• Do the issues raised in Ms Davies’ letter of 6 December 2018 concern matters arising under the Agreement, including matters about the interpretation or implementation of the Agreement?
• Does Ms Davies’ letter of 6 December 2018 satisfy Step 1 in clause 118.6 of the Agreement?
• Does Mr Brown’s letter of 13 December 2018 satisfy Step 2 in clause 118.6 of the Agreement?
• Is it only an employee or employees who can notify a dispute such that clause 118.6 of the Agreement is enlivened?’
[9] At [31]-[42] the Deputy President engaged in an analysis of the 6 December 2018 letter of demand and Mr Brown’s response of 13 December 2018 and found at [43]:
‘[43] Accordingly, where Steps 1 and 2 of clause 118.6 of the Agreement are satisfied and at the time the application was made the parties had been unable to resolve the issues raised in Ms Davies’ letter of 6 December 2018, Step 3 in clause 118.6 was enlivened. As such, it was open to the Applicant to refer the matter to the Commission “for mediation and/or conciliation and, if these processes fail, arbitration”.’
[10] In respect to the fourth question, the Deputy President said at [44]:
‘[44] In circumstances where I consider that the steps set out in clause 118.6 of the Agreement were “applied” in this case, it is not necessary to determine this issue. However, I do note that Step 1 of clause 118.6 of the Agreement refers to disputes “identified by an employee or employees” (underlining added).’
[11] Particularly relevant to our consideration, the Deputy President had earlier noted at [6] of the Decision that despite the alleged dispute having apparently been resolved, the respondent had advised him that EAS still wished to have the jurisdictional objections determined by the Commission.
GROUNDS OF APPEAL
[12] The appellant’s four grounds of appeal, which generally correspond to the Deputy President’s questions above, are as follows:
‘1. The Deputy President erred in finding at [37] of the Decision that a letter of demand sent by solicitors for the Appellant on 6 December 2018 satisfied step 1 in cl.118.6 of the ACT Public Sector First and Rescue Enterprise Agreement 2013-2017 (“the Agreement”).
2. The Deputy President erred in finding at [43] of the Decision that step 2 of cl.118.6 of the Agreement had been complied with.
3. The Deputy President erred in that he rejected an argument that the matter in issue between the parties and raised by the letter of 6 December related to the enforcement of the Fair Work Act and the imposition of penalties on the Respondent and was thus not properly the subject of a dispute within the ambit of cl.118 of the Agreement.
4. The Deputy President erred in accepting the Respondent to the jurisdictional application could characterise the letter of demand as a dispute under the Agreement in circumstances where a dispute under cl.118 of the Agreement can only be commenced by an employee and the evidence was that no employee had notified or given instructions to notify a dispute.’
[13] As to the public interest, two short points were put as follows:
‘1. The appeal raises important questions concerning the operation of dispute resolution provisions in Agreements.
2. The appeal raises important questions about the scope of the Commission’s power to deal with claims about enforcement of the Fair Work Act.’
SUBMISSIONS OF THE PARTIES
For the appellant
Ground One
[14] The appellant submitted that its 6 December 2018 letter of demand was not directed to the employee’s manager, but to the Chief Officer of ACT Fire and Rescue. While it is true the letter of demand was based on allegations of breaches of the Agreement, the import of the letter was the immediate remediation of those breaches and an undertaking the underpayments would cease. A failure to do so would result in the filing of Federal Court proceedings seeking compensation and penalties. It was put that at no point, does the letter raise Cl 118.6 of the Agreement and it does not purport to be a notification of dispute. Ultimately, it is the parties themselves who narrow the scope of matters which constitute a dispute within the parameters of the DSP.
[15] In this respect, the appellant submitted that pursuant to Cl 118.6 Step 1, a dispute can only be initiated by ‘employee/s’ and notified to the manager. Neither of these mandatory steps were taken; nor could they arise under Cl 118.6 of the Agreement.
[16] Further, the appellant submitted that the Deputy President’s conclusions firstly, that there was a dispute about the Agreement because the letter of demand referenced a claim under the Agreement and secondly, the phrase ‘the manager’ was broad enough to encompass the Chief Officer, were ‘at odds with the Agreement when properly construed’; see: ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] 268 IR 285 at [14]. (‘Berri’).
[17] The appellant put the effect of the Deputy President’s reasoning was that the Union and the employees accidently and unintentionally invoked the DSP. This is not possible because to invoke a process one must have an intention to do so. This does not go merely to form prevailing over substance, as the initiation process could end in arbitration by the Commission.
Ground Two
[18] The appellant submitted that if Step 1 had not been invoked because there was no valid dispute lodged under Cl 118.6, then Step 2 cannot logically follow from Step 1. In any event, ordinarily a party raising a dispute, in a conventional way, would wish to take part in discussions about its resolution. However, in this case, the employees did not wish to partake in discussions and had not sought to do so. This was not a case where a party seeks to frustrate the DSP by refusing to take part in a step mandated by the DSP process.
Ground Three
[19] It was the appellant’s submission that the Deputy President’s conclusion that matters under the Agreement and matters under the Act, are not mutually exclusive, does not deal with the substance of the dispute. The letter of demand does not seek to engage with the interpretation of the Agreement; rather, it demanded the respondent properly apply the Agreement as stated, or face the consequences of not doing so. It was said the Deputy President fell into error by not considering the true intention of the letter of demand.
Ground Four
[20] The appellant put that implicit in the Deputy President’s approach was that the respondent could characterise for itself an employee’s act and convert a demand into a dispute under Cl 118. This would be at odds with his own comment at [44] of the Decision and contrary to the clear intention of the Agreement and the very different intention of the letter of demand.
[21] As to permission to appeal, the appellant advised that the Union is in the process of commencing proceedings in the Federal Court. Accordingly, as the Commission cannot deal with claims of Agreement breaches and penalties, it would be inconvenient to have the same issues argued in two different forums, where only one forum can resolve the whole of the dispute.
Respondent’s submissions
[22] The respondent submitted that none of the Union’s four grounds of appeal raise issues warranting the grant of permission to appeal. No appeal ground discloses appealable error of the Deputy President. Permission to appeal should be refused, but if granted by the Full Bench, the appeal should be dismissed.
Ground One
[23] The respondent put that the appellant’s submission that the Deputy President erred by finding that the letter of demand had invoked Step 1 in Cl 118.6 of the Agreement at [37], was not what he had actually found. The Deputy President had properly identified two limbs to Step 1, both of which had been satisfied:
• a dispute about the interpretation or implementation of the Agreement had been identified by the employees; and
• the dispute was notified to the manager.
[24] It was said that while this was a subtle distinction, it was an important one.
[25] It was put that when the Union frequently refers to ‘invoking’ Step 1, this carries with it an assumption that Step 1 can only be satisfied by an employee intentionally electing to formally raising a dispute as a dispute under Cl 118. Such an assumption was contrary to the relevant textual, contextual and purposive considerations to the construction of Cl 118.
[26] As to the textual consideration, the respondent emphasised that Cl 118 is triggered by the words ‘in the event there is a dispute about matters arising under the Agreement’. Nowhere do the words ‘raise’, ‘invoke’ or ‘lodge’ a dispute (by an employee), appear. The existence of a dispute is a question of fact. If the fact is established, Steps 1-3 naturally follow. Further, Step 1 only requires a dispute to be ‘identified’ by employees, not identified as a dispute under Cl 118. This imposes an additional requirement not evident from the text.
[27] At to the phrase ‘the manager’, the respondent observed firstly, that the term ‘manager’ is not defined anywhere in the Agreement. On the Union’s construction, it would at least require an additional word to be added to the phrase; namely, the ‘employee’s’ manager. Secondly, the references in Step 2 to ‘the next appropriate management level’ and comprehends discussions ‘with Management’, strongly suggests that disputes are capable of being notified to various levels of management.
[28] In respect to contextual considerations, the respondent stressed the importance of Cl 118(3) as to the intention of the parties to utilise the DSP as ‘the first port of call’ in resolving disputes, rather than resort to the courts. That intention is best effected by giving the words in Cl 118(6) a broad construction. Further, as there is no suggestion the actual matters in dispute could not otherwise be dealt with under the DSP, the appellant’s submission carries a concession that it had contravened Cl 118.3, by seeking to resist and avoid its agreed position to use the DSP it had bargained for.
[29] In addition, the appellant’s construction of Cl 118.6 would be inconsistent with the preapproval requirements for an enterprise agreement (s 186 of the Act) to include a procedure requiring the Commission to settle disputes about any matter under the agreement and the National Employment Standards (‘NES’), or the Act’s model DSP will be a term of the Agreement. It was observed that in either case, this requirement is not confined to disputes raised only by employees, such as to exclude disputes raised by the employer. To do otherwise would result in the inclusion of an unlawful term, thereby rendering the agreement incapable of being approved by the Commission, under s186(6) of the Act; see: MC Labour at [38].
[30] The respondent submitted that the Deputy President’s conclusion that the phrase ‘the manager’ is broad enough to encompass the Chief Officer, is contextually sound, when other terms of the Agreement confine the term to the employee’s direct manager. These include:
• Cl 41.4 dealing with time off in lieu of overtime with the agreement of ‘their manager’;
• Cls 79.11, 80.10 and 81.10 dealing with discussions about leave requiring an employee to discuss prescribed matters with ‘their manager/supervisor’;
• Cls 91-97 dealing with workplace behaviour investigations and steps conducted by the ‘manager/supervisor’;
• Cl 126 referring to directions as to a manager’s suspicion of an employee being affected by alcohol or drugs. On the appellant’s construction only an employee’s direct manager could direst such an affected employee, meaning any other level of management, including the Chief Officer, would have no power to do so – an inherently unlikely outcome which cannot reasonably have been intended; and
• Appendix D dealing with religious leave being notified to the ‘employee’s manager in advance’.
[31] The respondent noted that other clauses which use the phrase ‘the manager’, sit comfortably with the Deputy President’s construction.
[32] As to purposive considerations, the Deputy President’s construction is consistent with the principle that dispute settlement procedures should be broadly construed; see: Shop, Distributive and Allied Employees Association v Big W Discount Department Stores Pty Ltd Print 924554 (AIRC) at [23] and later decisions to similar effect. Further, Cl 118 imposes obligations on the parties which compel them to engage with the DSP before resort to the courts. These are the bounds of their agreement from which neither party can depart from on ‘a case by case’ basis; see: Cape Australia Holdings Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] 223 IR 17 at [19]-[24].
Ground Two
[33] The respondent noted that the appellant’s ground as to Step 2 proceeds on two bases:
1. If there was no valid dispute, then there was no warrant to comply with Step 2 (or any step); and
2. If there was a dispute, then the steps in Step 2 had not been taken.
[34] The respondent submitted that while it is a remarkable proposition that employees did not want to take part in settlement discussions, it was irrelevant in any event. For similar reasons set out above under Ground One, Cl 118 is not predicated on an employee having a subjective intention to raise or lodge a dispute under Cl 118. Once covered by the Agreement, the employees were required to comply with its terms, whether they wished to or not.
[35] As to the appellant’s second contention, once Step 1 is satisfied, the Deputy President’s conclusion is unassailable. The inclusion of escalating discussions being subject to several appropriateness caveats, suggests a degree of discretion as to the level at which discussions occur and given the Union had notified the dispute to the Chief Officer, there was no ‘next appropriate management level’. The appellant had identified no error in these findings of the Deputy President.
Ground Three
[36] It was the respondent’s submission that this ground assumes the same argument the Deputy President had rejected at [31]-[32] of the Decision. The relevant dispute was identified and notified by Ms Davies as the employee’s representative. She was authorised to do so by Cl 118.5 and empowered to notify ESA of the dispute and to speak on the employee’s behalf. This is precisely what she did in the 6 December 2018 letter of demand. The fact the letter did not specifically mention Cl 118, is of no moment. The dispute did not concern the application of Cl 118; rather, it directly concerned the interpretation and implementation of Cls 45 and 149 of the Agreement.
[37] Moreover, the respondent said that there was a critical second claim in the letter of demand, in addition to the past alleged underpayments and penalties; namely, the Union sought a written undertaking about the terms of the parties’ future rights and obligations. This was an archetypal demand which is envisaged by the arbitral process that Cl 118 enlivens. Further, the Deputy President did not overlook anything contained in the letter of demand and the appellant could point to no error in this respect.
Ground Four
[38] The respondent rejected the appellant’s submission that the Deputy President had adopted the proposition that the employer itself had characterised the dispute and converted a request into a dispute. On the contrary, the Deputy President had dealt with all the elements of Cl 118.6 and made relevant findings. Specifically, the Deputy President did not find that Mr Brown’s interpretation of the letter of demand was a notification of a dispute satisfying Step 1. Rather the reverse is the case – the interpretation was open to Mr Brown because the letter itself satisfied Step 1.
[39] As to permission to appeal, the respondent put that the Decision is not affected by error. Nor was there sufficient doubt as to warrant reconsideration by the appeal bench.
Oral submissions
[40] For the appellant, Mr Friend claimed that what is now being put by the respondent is that an employee cannot go to court to enforce the Agreement, without first going through the whole of the Commission processes. He developed this proposition by putting that this would:
• preclude an application to a court for interlocutory relief in respect to a breach of an agreement;
• interfere with a person’s exercise of a workplace right and to challenge any consequent adverse action; and
• preclude an employee who threatens legal proceedings from doing so, if a lawful direction was given by the employer to comply with the terms of a DSP.
[41] Mr Friend submitted that the respondent’s construction allows the clause to operate lawfully is irrelevant, because that issue was never decided. The Deputy President had accepted the dispute had been commenced by the employees; so, it does not matter if it is the employee alone who can do so. The employees chose the course they wanted, because the relief sought was not available through the Commission.
[42] In answer to questions from the Bench, Mr Friend explained the background to the Federal Court proceedings. About a year ago, in earlier court proceedings under the Act, requiring the employer to provide payroll information, the respondent had agreed to provide the information to the Union in order for it to assess the extent of the underpayment claims on behalf of 300 or so employees and provided undertakings moving forward. Assessing the information was a difficult and time-consuming exercise, which is now close to completion and when it is, Federal Court proceedings will be filed. Mr Friend agreed that the Union is not, and could not be barred from taking any relevant matter to the courts. The Commission cannot make any binding determination, and no issue of estoppel arises. Further, on the material provided by the respondent, the conduct about which the Union had complained, has now ceased, so the dispute is only about the underpayments of the past, not of the future.
[43] Mr Friend pointed out it was the respondent who had requested the Deputy President determine the dispute, notwithstanding the Union’s position was about past conduct and there was nothing ongoing, other than a dispute involving the exercise of judicial power. Mr Friend submitted the respondent had ‘hijacked’ the process so as to place the Union in the position of having parallel proceedings, one of which cannot resolve the dispute in any event.
[44] In a direct question from the Vice President as to the utility of the appeal, Mr Friend agreed there was no utility, other than the Union having to defend a case about construction of the Agreement in the Commission which will be determined by the Federal Court. Mr Friend answered a further question about whether the Deputy President was asked about moving further on the dispute, as a matter of discretion, if he had been informed of the state of the other Federal Court proceedings. He said:
‘Our argument is there is no dispute properly before the Commission. This is at an earlier stage in the proceedings. Now, we can raise those other arguments if we fail today and we come up before the Deputy President, but we say we shouldn’t have to do that because at this stage there is no dispute properly before the Commission.’
[45] Mr Friend rejected the respondent’s criticism of the appellant’s construction of Cl 118.6 Step 1, that the employer cannot initiate, notify or lodge a dispute and only employee/s can do so and this might not meet s 186(6) of the Act as to the approval requirements for an enterprise agreement. He said that no one had suggested such an outcome and the issue is not relevant to the appeal. In any event, the Agreement had been approved. Mr Friend added that the current Agreement is about to be replaced, without this reference in the DSP.
[46] In oral submissions for the respondent, Mr Pollock addressed the utility of the appeal in this way: firstly, while there is absolutely no doubt that the Commission has no power to make underpayment orders or penalties, the 6 December 2018 letter of demand sought an undertaking about prospective conduct and while a specific undertaking was given in the earlier federal Court proceedings, ACT Fire and Rescue could not give such a restrictive undertaking which could impact on its staffing arrangements in the upcoming bushfire season. Moreover, it extends well beyond the cohort of four employees named in this case.
[47] Secondly, the question of the utility in determining the dispute to finality by arbitration, is really a matter for the Deputy President in the exercise of discretion. It is not a matter that arises directly on appeal.
[48] As to the proper construction of Cl 118, Mr Pollock said the issue is not determined by the subjective intentions of Ms Davies or Mr McConville, but on whether Cl 118 had been engaged and whether its provisions have been satisfied on the facts. In addressing the appellant’s submissions as to the rejection of the interpretation of the clause as being an accident or inadvertence, Mr Pollock put that this mischaracterises the nature of the letter of demand. In reality, the letter of demand was a deliberate and intentional step to raise the issues and subject matter of the dispute.
CONSIDERATION
[49] An appeal under s 604 of the Act 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; see: Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ. There is no right to appeal and an appeal may only be made with 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.
[50] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment; see: O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 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]. The public interest is not satisfied simply by the identification of error, or a preference for a different result; see: GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); 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 (‘NSW Bar Association’); Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]. In GlaxoSmithKline, a Full Bench of the Commission identified some of the considerations that may attract the public interest at [27]:
‘… 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…’
[51] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused; see also: CFMEU v AIRC (1998) 89 FCR 200 and Wan v AIRC (2001) 116 FCR 481.
[52] 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 appealable error; see: Wan v AIRC (2001) 116 FCR 481 at [30]. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[53] It is important to note that an application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal; see: Trustee for The MGTI Trust v Johnston [2016] FCAFC 140at [82]. However, it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error.
[54] It is a well-established principle that permission to appeal will rarely be granted if it is demonstrated, sometimes by the effluxion of time or as a consequence of other proceedings in the Commission or the courts, that there is little or no utility in determining the merits of the appeal. We consider that this is one such case. In KCL Industries Pty Ltd [2016] FWCFB 3048, the Full Bench said at [8]:
‘[8] Permission to appeal may be refused on the ground that the appeal lacks utility in the sense that the ultimate outcome of the application before the Commission to which the appeal relates would not be affected by the outcome of the appeal, or that the appeal otherwise has no practical purpose, even if appealable error is demonstrated.’ (footnote omitted)
See also: Ferrymen Pty Ltd v The Maritime Union of Australia [2013] FWCFB 8025 at [48], NSW Bar Association at [28].
[55]We propose to refuse permission to appeal for the following reasons:
[56] Firstly, the determination of any monetary entitlements under the provisions of the Agreement and claims of Agreement breaches and penalties arising therefrom, are, or are shortly to be the subject of proceedings to be filed by the appellant in the Federal Court of Australia. It is also the case the that the staffing arrangements that led to the issue being raised have changed, and although there is some prospect of the issue arising again at some stage in the future, there is no present dispute with a practical import.
[57] For obvious reasons, such as efficient case management, costs for the parties and the undesirability of having two different outcomes about the same subject matter, the Commission will, in the absence of sound reasons to the contrary, generally avoid proceeding to hear and determine a dispute under a DSP in an agreement where the subject matter, including the interpretation of the agreement’s term/s are concurrently before another member of the Commission or a Court. This is particularly so when the subject matter relates to events that have already taken place.
[58] In that regard, we note that before determining the jurisdictional objections ‘on the papers’ by consent, the Deputy President had been advised that the dispute had essentially been resolved. Unsurprisingly, the Deputy President asked if the arbitration of the objections should proceed. The respondent requested he do so, although it is unclear what the Union’s position was in this respect. There is no doubt the Deputy President was ‘alive’ to whether the dispute application should progress to arbitration, as His Honour said at [46]:
‘In terms of next steps, the Applicant is to advise the Commission by no later than close of business on Friday, 28 February 2020 whether it intends to press its application. I would observe in that regard that, if as the Respondent contends, the matters in dispute no longer remain extant there would appear to be little utility in the application being pressed’
[59] The parties in the appeal correctly acknowledge that in the exercise of the Commission’s discretion, and after being fully appraised of the status and likelihood of other Federal Court proceedings, the Deputy President may be persuaded not to proceed to arbitration of the dispute. This will be entirely a matter for the Deputy President when he is advised by EAS of whether, in light of the recent developments surrounding the Court proceedings, it now intends to press its application, or he otherwise relists the matter for further programming.
[60] Secondly, it is evident that the issues arising in this appeal relate to the particular circumstances in which the matter was raised in the workplace and the terms of the present DSP. The Full Bench was informed by the appellant that the Agreement is about to be replaced by a new enterprise agreement with amendments to the DSP expressly dealing with matters which have been raised in this appeal concerning Cl 118.6 Step 1 and the appellant’s submission that only the employee/s can initiate, raise or lodge a dispute under Step 1. Further, to the extent that the present Agreement remains in place until that time, clarification about the particular aspects of the DSP in issue here is unlikely to be relevant in any other circumstances.
[61] As a result, there is limited utility to a grant of permission to appeal. In addition, there are no issues of general application or importance justifying permission to appeal being granted. Further, we are not persuaded that the Deputy President’s Decision is attended by sufficient doubt as to warrant reconsideration on appeal. Finally, in all of the circumstances it could not be said that an injustice – let alone a substantial injustice – may result if permission to appeal is refused.
[62] For the above reasons, permission to appeal is refused. We order accordingly.
VICE PRESIDENT
Appearances:
Mr W Friend, of Counsel, and Ms S Bingham, of Counsel, for the appellant.
Mr A Pollock, of Counsel, for the respondent.
Hearing details:
2020.
Sydney:
20 April.
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