Veolia Environmental Services (Aust) Pty Ltd v Australian Workers' Union
[2013] FWCFB 269
•15 JANUARY 2013
[2013] FWCFB 269 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
The Australian Workers' Union
(C2012/5506)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 15 JANUARY 2013 |
Appeal against decision [[2012] FWA 8038] of Commissioner Booth at Brisbane on 17 September 2012 in matter number AG2012/4134.
[1] This decision concerns an appeal against the refusal by Commissioner Booth to approve an enterprise agreement. The appellant, Veolia Environmental Services (Australia) Pty Ltd submits that the Commissioner was in error in the manner in which she interpreted and applied sections of the Fair Work Act 2009 (the Act) which concern pre-approval and approval requirements.
[2] Both the appellant and The Australian Workers’ Union (AWU) appeared before the Commissioner and supported the approval of the Veolia Environmental Services (Australia) Pty Ltd Gladstone Operations 2012 - 2014 Enterprise Agreement (the agreement). Before us, the AWU supported the submissions of the appellant. The issue raised in this appeal concerns the consequences of an employer providing a notice of employee representational rights which omits the following paragraph:
“If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.”
We will describe this paragraph as the default bargaining representative provision.
[3] Shortly prior to the hearing of this appeal a Full Bench decision in Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union 1 (Ostwald) was published. That decision was brought to the attention of the appellant. In Ostwald, as here, the notice of representational rights given to employees omitted the whole of the default bargaining representative provision. Ostwald comprised a majority decision of Senior Deputy President Watson and Commissioner Gooley and a dissenting decision of Vice President Watson. The conclusion reached by the majority is in the following terms:
“[88] Properly construed, in the broader context of the Act, s.188(1)(b) of the Act requires the giving of notice of employee representational rights 21 days prior to a request to approve an enterprise agreement under s.181 in the terms required by s.174 of the Act, which includes advice of default representation in s.174(3). The notice given in this case, which omitted the information to employees required by s.174(3) was not a notice as required by s.188(1)(b).
[89] Commissioner Booth was correct in her construction of the Act and was correct in her conclusion that the employer has not complied with s.173(1) and therefore notice was not given for the purposes of the 21 days time frame in s.181(2). The Commissioner’s decision not to approve the Agreement was correct.”
[4] Vice President Watson’s conclusion is expressed in these terms:
“[157] For the reasons above I would grant permission to appeal, allow the appeal and subject to satisfaction of the other statutory tests not dealt with in the decision, approve the Agreement. The defects in the Notice did not lead to its invalidity on a proper application of the approach of the High Court in Project Blue Sky. Nor was any test for approval not satisfied by virtue of the defects. There were no reasonable grounds for believing that the Agreement had not been genuinely agreed.”
[5] In each of the above decisions the Members considered in detail all the relevant provisions of the Act and the manner in which they should be applied to the task of approval of an enterprise agreement. Our decision should be read together with Ostwald. Accordingly, we have not here reproduced all of the sections of the Act. As will be apparent from our comments below we concentrate specifically on what was described by the appellant as an additional error which was not considered in Ostwald.
[6] The appellant was represented before us by Mr Murdoch SC and the AWU by Ms Woodhouse. The appellant accepted that the issue raised in this appeal is the same as dealt with in Ostwald. 2 This consideration has some implications for how we consider we should dispose of this appeal. However, we should first address the submission of the appellant as to an error in the Commissioner’s construction of s.174 that it submits does not appear to have been considered in Ostwald.
[7] Mr Murdoch submitted that a distinction needs to be drawn between the obligation to inform employees of their right to appoint themselves or someone else as a bargaining representative and the necessity to inform employees of the default bargaining representative provisions. The former category of right is that contained in s.173(1) and again identified in s.174(2). Those subsections define the scope of the representational right that is later relevant to the application of ss.186 and 188. This right is to be contrasted with the default bargaining representative provisions which, Mr Murdoch submitted, are provisions that do not confer a right. The obligation in s.174(3), whilst being highly desirable, was described as only an obligation to “explain” and is of a different character to the obligation in s.174(2) which is to "specify" that information in the notice.
[8] We doubt if it is correct to say the majority in Ostwald did not consider this construction of s.174. Although not expressed in precisely the same terms it is clear from the reasons at paragraph [65] onwards, and paragraph [74] in particular, that the different terms used in s.174 were considered. We note they were there described as falling into two categories, one being s.174(2) which had there been described as fundamental, and s.174(3) which was not. For reasons there given the argument was not accepted by the majority.
[9] In our opinion s.174 gives no support to reading the content requirements in the variable manner for which the appellant contends. Each of the subsections of s.174 describes what the notice must contain. The fact the section describes the obligations of an employer to be to specify certain matters and to explain others provides no warrant to support a different approach to the necessity for the notice to contain those matters. The whole of the section is about what the notice must contain. Throughout the section it uses the word “must”. The fact a union to which the employee belongs will be his or her bargaining representative in the absence of that employee appointing themselves or another person to be so is clearly a matter about which the employee should be alerted. That is one of the functions served by compliance with the obligations in s.174. It is understandable that the obligation in s.174(3) is expressed in terms of requiring the employer to provide an explanation of the matters in subsections (a) and (b). That is the way the Act operates to alert an employee of the effect of s.176(1)(b).
[10] We return to Ostwald. We respectfully observe that each of the majority and dissenting decisions is detailed, closely analyses the relevant provisions of the Act and applies appropriate principles of statutory interpretation albeit with a different result being reached. The appellant submitted that we should prefer the dissenting decision to that of the majority. In doing so however little substantive criticism was made of the reasons for the majority and that which there was we would describe as going through the decision with a fine tooth comb to identify any imprecise expression or verbal slip 3. The appellant has identified no error of substance in the reasons of the majority in Ostwald such as to persuade us to revisit its conclusions. In these circumstances we have decided to apply the approach of the High Court of Australia in Nguyen v Nguyen4 which has been frequently adopted by Full Benches of this Commission and its predecessors. In doing so we aknowledge that the Commission is not a court, nonetheless, the underlying public interest considerations apply with similar force to appeal proceedings. The relevant passage from Nguyen is as follows:
“When a Court of Appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasion upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.” 5
[11] We have not been persuaded by the arguments of the appellant that the majority decision in Ostwald is wrong. It is appropriate we follow and adopt those reasons for decision. Consequently, we are not persuaded that Commissioner Booth was in error in refusing to approve the agreement. No other considerations are raised in this appeal which enliven the public interest 6. We decline to grant permission to appeal. The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J.E. Murdoch SC and Mr D. Broanda for Veolia Environmental Services (Australia) Pty Ltd
Ms C. Woodhouse for The Australian Workers’ Union
Hearing details:
Brisbane
2012
14 November
1 [2012] FWAFB 9512
2 PN12
3 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272
4 (1990) 169 CLR 245 and as applied by Fair Work Australia eg see Australian Industry Group v ADJ Contracting Pty Ltd [2011] FWAFB 6648 at paragraph [24] ( judicial review of this decision by Federal Court in [2012] FCAFC 108)
5 (1990) 169 CLR 245 at page 269
6 In this respect we also note the effect of an amendment to s.174 of the Fair Work Act 2009, operative 1 January 2013 which makes express provision as to the content of the notice of representational rights.
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