[2011] FWAFB 3863 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
JUSTICE GIUDICE, PRESIDENT |
|
[1] This is an appeal, for which permission is required, by the Transport Workers’ Union of Australia (TWU) against a decision by Commissioner Williams on 16 December 2010. In that decision the Commissioner approved an enterprise agreement known as the WA Freight Group Line Haul Division Enterprise Agreement 2010 (the agreement). 1 The agreement applies to drivers employed by Jolley’s Transport Services Pty Ltd and WA Freightlines Pty Ltd (WA Freight Group). The appeal is brought pursuant to s.604 of the Fair Work Act 2009 (the Act). The appeal was listed for hearing in Perth on 9 March 2011. At the conclusion of the oral submissions we reserved our decision on a number of threshold issues. We gave a decision in relation to those issues on 2 May 2011.2 In that decision we made provision for any additional submissions to be in writing. This decision should be read in conjunction with that one.
[2] An appeal may only be brought by the TWU if it is a person aggrieved by the Commissioner’s decision to approve the agreement. 3 WA Freight Group submitted that the TWU is not a person aggrieved by the Commissioner’s decision. We are prepared to assume that the TWU is aggrieved.
[3] There are three grounds of appeal. The first ground concerns the application of the better off overall test (BOOT) in s.193 of the Act. The second ground concerns the process for approval of the agreement and some aspects of the voting process in particular. The third ground alleges that the Commissioner failed to give adequate reasons for his decision.
[4] In relation to the first ground, the TWU submitted that the BOOT had not been correctly applied or, if it had been, the Commissioner’s reasons for decision were inadequate. The reference instrument for the purpose of the BOOT is the Road Transport (Long Distance Operations) Award 2010 (the award). 4 It was submitted that the Commissioner failed to take account of the fact that the agreement prescribes an hourly rate of pay lower than that prescribed in the award, failed to consider how the employees covered by the agreement would be better off when most if not all of the drivers work on a two-up basis and failed to consider that the agreement does not contain any increase in the rates currently paid by WA Freight Group to the drivers who would be covered by the agreement.
[5] The agreement provides for a specified rate per kilometre as the basis for payments to drivers. As noted, the drivers work on a two-up basis, with one employee driving and the other resting. The agreement replaces an earlier agreement to which the TWU was a party. That agreement also provided for drivers working on a two-up basis. It appeared that the substance of the TWU’s complaint is based not on a comparison with the hourly rate in the award but a comparison with rates applying generally in the industry to drivers working two-up. When it is appreciated that the BOOT is to be applied by considering the terms of the agreement against the terms of the award, it is apparent that the submission was in reality misdirected. No attempt was made to come to grips with how time spent in the cabin resting should be taken into account for wages purpose.
[6] In our view it was open to the Commissioner to conclude that the agreement passed the BOOT. It may be that the practice of operating with two drivers, which is reasonably common in the long distance sector of the road transport industry, will require further examination in some future case. But we do not think that there is any basis disclosed by the TWU’s submissions to upset the Commissioner’s decision in this case. There is no error apparent and the first ground must be rejected. We deal later with the submission that the Commissioner failed to give adequate reasons for his decision.
[7] The second ground of appeal is directed at the process for approval of the agreement. Section 182(1) of the Act requires that the agreement be approved by a majority of employees who cast a valid vote in a ballot. The TWU alleges that the Commissioner wrongly found that this requirement had been satisfied. This ground was supported by reference to a statement in Appendix A to the agreement that 70 employees are covered by it and a statement in the declaration accompanying the application for approval which indicated that only 64 employees were covered. It is common ground that 42 valid votes were cast with 22 being in favour of the agreement. It was submitted that in the circumstances it was not open to the Commissioner to find that there was a majority of valid votes in favour of the agreement. It is unclear what inquiries the Commissioner made to satisfy himself on this issue. It does not follow from the material referred to, however, that the Commissioner’s decision in this respect must be wrong. The material does no more than point to the possibility of error. In our view there is insufficient substance in the second ground of appeal.
[8] The third ground is that the Commissioner failed to give adequate reasons for his decision. In particular it was submitted that the Commissioner failed to give adequate reasons for his conclusion that the agreement complied with the BOOT and that the agreement had been genuinely agreed to by the employees covered by it.
[9] It is necessary to say something about the nature of the obligation to give adequate reasons for decision. The general position was set out by a Full Bench in Barach v University of New South Wales as follows:
“[16] The duty to give adequate reasons for decision has been considered on many occasions (See generally Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, at 269-271, 280; Re Astec Pty Ltd (1992) 45 IR 261; Edwards v Giudice (1999) 169 ALR 89 at [10]-[11], [44]-[48]; Alchin v Daley [2009] NSWCA 418 at [35]). Important public policy considerations underlie this duty. In particular, the reasons for decision must be sufficient to allow the parties to exercise such rights of appeal as may be available and to enable an appeal bench to determine whether or not error has occurred in relation to a decision. Consequently the reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons for decision of a tribunal member need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.” 5
[10] This statement of principle requires some elaboration. First, not in every case will reasons for decision be required. Some of the cases in which reasons may not be required were referred to in Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Ltd. 6 It may also be that reasons are not required for framing an order in a particular way, but it will depend on the circumstances.7 Where reasons are required, and assuming reasons are given, a question may arise as to the adequacy of the reasons. Whether the reasons given are adequate will depend upon the circumstances including the nature of the statutory function being exercised, the decision and the submissions and material in the case.
[11] Where a member of Fair Work Australia gives approval to an enterprise agreement reasons should normally be given. It should be pointed out, however, that in most cases it is not necessary to give detailed reasons and short reasons will normally be adequate. The functions in relation to approval of an agreement are reasonably tightly circumscribed by the statutory provisions. It is not necessary to refer to those provisions in detail but they are to be found in Division 4 of Part 2–4 of the Act, mainly in Subdivision B. Section 186 sets out general requirements for approval and s.187 set out some additional requirements. Section 201 may also be relevant to a decision approving an agreement. If all of these requirements are met the agreement must be approved. The Fair Work Australia Rules 2010 require that an application for approval of an agreement be accompanied by a declaration in support of the application. 8 The declaration is designed to obtain from the declarant the factual information necessary to enable a decision to be made as to whether all of the statutory requirements have been met in relation to the application. Where all of the relevant matters have been addressed and the relevant information provided in the declaration, or through other means, it should be sufficient to indicate that the requirements have been met. This is because where there are no disputed questions of fact or law there is very little to be decided if the material in the declaration is accepted.
[12] There are some cases in which reasons may need to be more detailed. It is more likely that detailed reasons will be necessary where there are issues in dispute or where the member is not satisfied on the information provided that all of the statutory requirements have been met.
[13] In this case there were some objections notified by some of the drivers to be covered by the agreement. The Commissioner dismissed those objections in his decision and it does not appear that the TWU contends that his reasons were inadequate in that regard. The arguments sought to be advanced by the TWU on appeal were not advanced before the Commissioner. The reasons given by the Commissioner, although short, were adequate in the circumstances. The third ground of appeal must also fail.
[14] For these reasons we do not think this is an appropriate case in which to grant permission to appeal.
PRESIDENT
Appearances:
S Millman for the Transport Workers’ Union of Australia.
J Uphill for WA Freightlines Pty Ltd.
Hearing details:
2011.
Perth.
March 9.
Final written submissions:
2011
June 7.
3 Section 604(1) of the Act.
6 [1983] 3 NSWLR 378 at 386C per Mahoney JA and Re Saizeriya Australia Employment Agreement 2001, PR912618, 6 February 2002 at para 30.
7 See Health Services Union v Victorian Hospitals’ Industrial Association [2008] AIRCFB 311 at para 31.
8 See Forms F17 and F18 for declarations in support by an amployer and an employee organisation respectively.
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