United Voice v MSS Security Pty Ltd - [2016] FCAFC 124

FEDERAL COURT OF AUSTRALIA
United Voice v MSS Security Pty Ltd
[2016] FCAFC 124

File number: QUD 1153 of 2015

Judges: RARES, COLLIER AND RANGIAH JJ

Date of judgment: 23 August 2016

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – appeal under s 607 from decision of Commissioner to Full Bench of Fair Work Commission – where ground of appeal claimed that enterprise agreement failed to satisfy better off overall test under s 186(2)(d) – where parties in Federal Court agreed Full Bench made jurisdictional error by failing to consider ground of appeal as to satisfaction of better off overall test under s 193(1) and that a writ of certiorari issue to quash – where applicant argued that Federal Court should construe enterprise agreement to determine if capable of satisfying better off overall test on application for constitutional writ relief – whether Federal Court should exercise jurisdiction to construe agreement – whether writ of mandamus should issue to Full Bench to hear and determine appeal in accordance with s 607

Legislation:
Judiciary Act 1903 (Cth) s 39B

Fair Work Act 2009 (Cth) ss 186, 187, 189, 193 562, 563, 607

Cases cited:
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2006) 203 CLR 194

Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64

Date of hearing: 23 August 2016

Registry: New South Wales

Division: General Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 21

Counsel for the Applicant: Mr WL Friend QC with Mr RE Reed

Solicitor for the Applicant: Hall Payne Lawyers

Counsel for the First Respondent: Mr RL Dalton

Solicitor for the First Respondent: Mills Oakley

ORDERS

QUD 1153 of 2015

BETWEEN:
UNITED VOICE

Applicant

AND:
MSS SECURITY PTY LTD

First Respondent

FAIR WORK COMMISSION

Second Respondent

JUDGES:

RARES, COLLIER AND RANGIAH JJ

DATE OF ORDER:

23 AUGUST 2016

THE COURT ORDERS THAT:
1.A writ of certiorari issue to the Fair Work Commission removing into this Court the decision made in Sydney on 12 November 2015 in proceeding C2015/3752, recorded in United Voice - Queensland Branch v MSS Security Pty Ltd [2015] FWCFB 6923, and quashing that decision.
2.A writ of certiorari issue to the Fair Work Commission removing into this Court the decision made in Sydney on 1 December 2015 in proceeding AG2014/10202, recorded in MSS Security Pty Ltd [2015] FWCA 8318, and quashing that decision.
3.A writ of mandamus issue to the Fair Work Commission requiring it to hear and determine the notice of appeal filed by the appellant on 30 April 2015 in proceeding C2015/3752 according to law.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
THE COURT:

This is an application for constitutional writ relief pursuant to s 39B(1) of the Judiciary Act 1903 (Cth), and ss 562 and 563 of the Fair Work Act 2009 (Cth) (the…

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: [2016] FCAFC 124
Decision Date: 23 August 2016

CaseChat Overview and Summary

The case of United Voice v MSS Security Pty Ltd involved the union United Voice, appealing against decisions made by the Fair Work Commission (FWC) regarding an enterprise agreement. The union argued that the FWC had failed to properly apply the better off overall test, as required under the Fair Work Act 2009 (Cth), when approving the enterprise agreement. The union's appeal against the FWC's decision was initially dismissed in the Federal Court, but it later sought a writ of certiorari to quash the FWC's decisions and a writ of mandamus to compel the FWC to hear and determine the appeal correctly. The primary issues before the court were whether the Federal Court should construe the enterprise agreement to determine if it satisfied the better off overall test and whether the Federal Court should exercise jurisdiction to construe the agreement.

The court found that the union's application to quash the Commissioner’s decision was misconceived, as the union had already invoked its right of appeal against that decision. The court held that the Federal Court's jurisdiction to issue a writ of certiorari or mandamus was supervisory, and it was not the role of the Federal Court to determine whether the better off overall test was satisfied. The court reasoned that the questions of construction of the agreement and the better off overall test involved matters of fact and degree, which were within the purview of the FWC. The court further noted that even if the better off overall test were not satisfied, the FWC had the discretion to approve the agreement if it was satisfied that exceptional circumstances existed, which would not be contrary to the public interest. Therefore, the Federal Court could not determine whether the Full Bench could have approved the agreement in the exercise of its powers under the Act. The court concluded that the FWC had committed a jurisdictional error by failing to properly consider the union’s argument regarding the satisfaction of the better off overall test, and thus, a writ of certiorari should issue to quash the FWC’s decisions, and a writ of mandamus should issue to require the FWC to hear and determine the union’s appeal according to law.

The final orders made by the court included issuing a writ of certiorari to remove and quash the decisions made by the FWC on 12 November 2015 and 1 December 2015, and a writ of mandamus to require the FWC to hear and determine the union’s appeal in accordance with the law. The union’s application for the Federal Court to construe the enterprise agreement and determine the satisfaction of the better off overall test was dismissed, and the appeal was remitted to the FWC for proper consideration.

Orders

Orders of the court

1. A writ of certiorari issue to the Fair Work Commission removing into this Court the decision made in Sydney on 12 November 2015 in proceeding C2015/3752, recorded in United Voice - Queensland Branch v MSS Security Pty Ltd [2015] FWCFB 6923, and quashing that decision.

2. A writ of certiorari issue to the Fair Work Commission removing into this Court the decision made in Sydney on 1 December 2015 in proceeding AG2014/10202, recorded in MSS Security Pty Ltd [2015] FWCA 8318, and quashing that decision.

3. A writ of mandamus issue to the Fair Work Commission requiring it to hear and determine the notice of appeal filed by the appellant on 30 April 2015 in proceeding C2015/3752 according to law.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The union’s application to this Court to quash the Commissioner’s decision was misconceived. The union had invoked its right of appeal, under the Act, against that decision, but the appeal miscarried for the reasons we have given. It is for the Full Bench, exercising its appellate power under s 607(3)(c), to determine what order should be made in respect of the Commissioner’s decision.Conclusion For these reasons, we consider it appropriate that a writ of certiorari be issued to quash the decisions of the Full Bench made on 12 November 2015, and of the Vice President made on 1 December 2015, and that a writ of mandamus should issue to the Commission requiring the Full Bench to hear and decide the union’s appeal to it according to law.

Ratio Decidendi

Legal Principle Established

The union also alleged that the Full Bench made a further jurisdictional error, namely that the decision to approve the agreement was not one that could reasonably have been reached, having regard to what the union contended was the proper construction of cl 4.3.5(a) in all the circumstances. MSS submitted that there was no such error.Consideration We are satisfied that the Full Bench did commit the jurisdictional error identified by the parties and, for the following reasons, we should make the orders to which the parties have consented: Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64 at [43] and [51] per French, Weinberg and Greenwood JJ. Section 186(1) of the Act requires the Commission to approve an agreement if satisfied that the requirements of ss 186 and 187 are met. Section 186(2)(d) requires that the Commission must be satisfied that an agreement passes the “better off overall test”. That test is set out in s 193(1) and obliged the Commission to undertake an overall comparison of the agreement with the award. The Full Bench failed to deal with the union’s argument that cl 4.3.5(a) of the agreement had the effect of reducing the remuneration of some employees in comparison with that payable under the award. Accordingly, the Full Bench failed to undertake the comparison that was required under ss 186(2)(d) and 193(1) of the Act and so failed to apply itself to the question which those sections prescribed. This amounted to a jurisdictional error: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2006) 203 CLR 194 at 208-209 [31] per Gleeson CJ, Gaudron and Hayne JJ. The union’s second argument attempts to have this Court, effectively, decide whether the better off overall test is satisfied under the guise of asserting that the Commission could not reasonably conclude that the agreement satisfied that statutory requirement. In our opinion, questions of construction of the agreement, the award and the industrial circumstances involve matters of fact and degree. Moreover, even if the better off overall test were not satisfied, the Commission is not bound to refuse to approve the agreement. That is because s 189(2) allows the Commission to approve an agreement if it is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest. Those issues are matters that ss 186(2)(d) and 189 require the Commission to evaluate and decide. Even if the better off overall test were not satisfied, the existence of the discretionary power of the Commission to approve an agreement demonstrates that it is not possible for this Court to determine, as the union sought, that the Full Bench could not have approved the agreement in the exercise of its powers under the Act. The Court’s jurisdiction that is invoked in this application, under s 39B of the Judiciary Act and for constitutional writs under s 563, is supervisory.

File number:	QUD 1153 of 2015
Judges:	RARES, COLLIER AND RANGIAH JJ
Date of judgment:	23 August 2016
Catchwords:	INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – appeal under s 607 from decision of Commissioner to Full Bench of Fair Work Commission – where ground of appeal claimed that enterprise agreement failed to satisfy better off overall test under s 186(2)(d) – where parties in Federal Court agreed Full Bench made jurisdictional error by failing to consider ground of appeal as to satisfaction of better off overall test under s 193(1) and that a writ of certiorari issue to quash – where applicant argued that Federal Court should construe enterprise agreement to determine if capable of satisfying better off overall test on application for constitutional writ relief – whether Federal Court should exercise jurisdiction to construe agreement – whether writ of mandamus should issue to Full Bench to hear and determine appeal in accordance with s 607
Legislation:	Judiciary Act 1903 (Cth) s 39B Fair Work Act 2009 (Cth) ss 186, 187, 189, 193 562, 563, 607
Cases cited:	Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2006) 203 CLR 194 Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64
Date of hearing:	23 August 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Applicant:	Mr WL Friend QC with Mr RE Reed
Solicitor for the Applicant:	Hall Payne Lawyers
Counsel for the First Respondent:	Mr RL Dalton
Solicitor for the First Respondent:	Mills Oakley

JUDGES:	RARES, COLLIER AND RANGIAH JJ
DATE OF ORDER:	23 AUGUST 2016