United Voice v Broadspectrum (Australia) Pty Ltd - [2017] FWCFB 871

[2017] FWCFB 871

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

United Voice
v
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(C2016/7153)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT KOVACIC
COMMISSIONER LEE

MELBOURNE, 15 FEBRUARY 2017

Appeal against decisions [2016] FWC 7936 and [2016] FWCA 8209 of Commissioner Riordan at Sydney on 15 and 18 November 2016 in matter number AG2016/3877; ex parte communications between Chambers of Commissioner and a party; whether denial of procedural fairness; permission to appeal granted; appeal upheld; decisions quashed; application remitted to another Member of the Commission to determine.

Introduction

[1] United Voice (UV) has applied for permission to appeal and appealed two decisions 1 of Commissioner Riordan issued on 15 and 18 November 2016 respectively, relating to the approval of an enterprise agreement titled the JBU Enterprise Agreement 2016 (Agreement) made by Broadspectrum (Australia) Pty Ltd (Broadspectrum) and certain of its employees. The first decision contains the Commissioner's reasons for concluding that the Agreement should be approved and the second decision is the formal instrument approving the Agreement.

Intervention application

[2] By correspondence dated 20 December 2016, the Transport Workers’ Union (TWU) applied for leave to intervene in the appeal in order to make a submission. UV supported the application, while Broadspectrum opposed the application for intervention. On 18 January 2017, the parties and the TWU were advised that the Full Bench determined to refuse leave for the TWU to intervene in the appeal to make a submission and that reasons for the decision would be published in conjunction with our decision on this appeal.

[3] In support of its application for leave to intervene, the TWU submitted that it would make submissions in relation to whether:

the Agreement was genuinely agreed to by the employees who voted to approve the Agreement; and

whether the Agreement was made with employees who at the time the Agreement was approved, would be covered by the Agreement.

[4] TWU submitted that it was in a position to assist the Full Bench because of its knowledge and experience in relation to the work in question. It was not suggested that UV did not possess such knowledge or experience.

[5] We consider that the submissions that the TWU proposed making if leave to intervene to make the submission were granted, would largely be a repetition of the submissions of UV. In particular, the TWU’s submissions in support of its application to intervene did not identify any additional argument that it proposed to raise which was not raised in the UV’s written submissions and, despite being invited to do so, the TWU did not identify any argument relevant to the grounds of appeal which could not be raised by UV.

[6] Submissions by a non-party to an appeal wishing to intervene which propose to duplicate and merely support the submissions to be advanced by a party on appeal are of little assistance to the Full Bench and as such do not provide a proper basis for the Commission…

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.

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Details

Case: [2017] FWCFB 871
Decision Date: 15 FEBRUARY 2017

CaseChat Overview and Summary

United Voice, a registered trade union, appealed against decisions made by Commissioner Riordan of the Fair Work Commission in relation to the employment of certain workers. The union sought to challenge the procedural fairness of communications between the Chambers of Commissioner Riordan and Broadspectrum, an employment services provider. The union argued that these communications constituted bias and a denial of procedural fairness. The Federal Court was tasked with determining whether the union's concerns were valid and, if so, whether the decisions of the Commission should be quashed.

The central legal issue before the Court was whether the ex parte communications between the Chambers of Commissioner Riordan and Broadspectrum constituted a breach of procedural fairness. The union argued that the communications were improper and prejudicial, leading to a denial of natural justice. The Court had to assess the nature and content of the communications, the context in which they occurred, and whether they had the potential to influence the outcome of the proceedings. The union further contended that the Commission's failure to address this issue warranted the quashing of its decisions.

In considering the appeal, the Court found that the ex parte communications indeed constituted a breach of procedural fairness. The content of the communications, coupled with the context in which they were made, demonstrated a potential for bias. The Court determined that the failure of the Commission to address this issue was sufficient to warrant the quashing of its decisions. The Court granted permission for the appeal, upheld the appeal, and quashed the decisions of the Commission. The matter was remitted to another Member of the Commission to be determined anew, ensuring that the principles of procedural fairness were fully respected.

The Court's final orders included granting the union's appeal, quashing the decisions of the Commission, and remitting the matter to another Member of the Commission for determination. This outcome underscored the importance of procedural fairness in administrative law and reinforced the need for tribunals to carefully manage communications to avoid any appearance of bias or unfairness.

Orders