Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision of Senior Deputy President Hamberger at Sydney on 30 September 2014 in matter number C2014/6512 - refusal to grant order under s.532 of the Fair Work Act 2009 - appeal filed out of time - application for extension of time refused.

[1] This is an appeal against a decision of Senior Deputy President Hamberger, in which he dismissed an application by the Construction, Forestry, Mining and Energy Union (the CFMEU or the appellant) for an order directed to Kestrel Coal Pty Ltd (Kestrel) under s.532 of the Fair Work Act 2009 (Cth) (the Act).

[2] The orders which were sought by the union related to proposed dismissals at the Kestrel mine in Emerald in the State of Queensland. There is no issue that the CFMEU had standing to make application for orders under s.532. The relevant provisions of the Act are contained in Division 2 of Part 3-6, which is titled “Notification and consultation relating to certain dismissals”. Sections 531 and 532 should be reproduced. They are in the following terms:

“Subdivision B—Failure to notify or consult registered employee associations

531 FWC may make orders where failure to notify or consult registered employee associations about dismissals
(1) The FWC may make an order under subsection 532(1) if it is satisfied that:

(a) an employer has decided to dismiss 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons; and
(b) the employer has not complied with subsection (2) (which deals with notifying relevant registered employee associations) or subsection (3) (which deals with consulting relevant registered employee associations); and
(c) the employer could reasonably be expected to have known, when he or she made the decision, that one or more of the employees were members of a registered employee association.

Notifying relevant registered employee associations
(2) An employer complies with this subsection if:

(a) the employer notifies each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, of the following:

(i) the proposed dismissals and the reasons for them;
(ii) the number and categories of employees likely to be affected;
(iii) the time when, or the period over which, the employer intends to carry out the dismissals; and

(b) the notice is given:

(i) as soon as practicable after making the decision; and
(ii) before dismissing an employee in accordance with the decision.

Consulting relevant registered employee associations
(3) An employer complies with this subsection if:

(a) the employer gives each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, an opportunity to consult the employer on:

(i) measures to avert or minimise the proposed dismissals; and
(ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed dismissals; and

(b) the opportunity is given:

(i) as soon as practicable after making the decision; and
(ii) before dismissing an employee in accordance with the decision.

532 Orders that the FWC may make
(1) The FWC may make whatever orders it considers appropriate, in the public interest, to put:

(a) the employees; and
(b) each registered employee association referred to in paragraph 531(2)(a) or (3)(a);
in the same position (as nearly as can be done) as if the employer had complied with subsections 531(2) and (3).

(2) The FWC must not, under subsection (1), make orders for any of the following:

(a) reinstatement of an employee;
(b) withdrawal of a notice of dismissal if the notice period has not expired;
(c) payment of an amount in lieu of reinstatement;
(d) payment of severance pay;
(e) disclosure of confidential information or commercially sensitive information relating to the employer, unless the recipient of such information gives an enforceable undertaking not to disclose the information to any other person;
(f) disclosure of personal information relating to a particular employee, unless the employee has given written consent to the disclosure of the information and the disclosure is in accordance with that consent.”

The application and the hearing before the Senior Deputy President

[3] The CFMEU filed the application on 25 September 2014. A letter which accompanied it indicated that the redundancies, the subject of the application, were to be implemented “in or about late September 2014”. A request was made for the matter to be listed in Brisbane on an urgent basis on the “first available date after 11am on Monday 29 September 2014”.

[4] The matter was listed for hearing on 30 September 2014. At the time the notice of listing was dispatched, the CFMEU complained both about the time of the hearing and the fact that it was to be conducted by way of a video link. None of the grounds of appeal or submissions made by the CFMEU refers to this matter, so there is no need for us to comment upon it further.

[5] Mr Walkaden appeared before His Honour for the CFMEU and Mr Smith appeared for Kestrel. A witness statement of Mr Christopher Brodsky, District Vice President of the CFMEU, was tendered. Mr Brodsky gave oral evidence and was cross-examined. A witness statement of Mr Jonathan Lawler, Manager Human Resources, was tendered by Kestrel. Mr Lawler gave oral evidence and was cross-examined. We observe that the statements of both witnesses are detailed and annex numerous documents. They contain copies of many exchanges between the union and Kestrel by both email and correspondence between 1 September 2014 and 24 September 2014. Details are also given of three consultation meetings between the CFMEU and Kestrel held on 4 September, 10 September and 23 September 2014. The evidence addressed the matters discussed at each of those meetings. Details were also given of employee crew briefings that were conducted throughout the relevant period. The evidence included meeting agendas, notes of discussions, copies of memoranda, slides and organisational charts. It also addressed the documentation which was requested by the CFMEU and that which was provided by Kestrel.

[6] Detailed submissions were made to His Honour concerning the construction of ss.531 and 532, findings he should make on the evidence and why he should exercise his discretion to make the orders sought by the CFMEU.

[7] At the conclusion of the hearing, His Honour noted that both parties wished for him to make an immediate decision in the matter and he proposed to do so. He then announced his decision in transcript. No separate decision was subsequently published.

[8] The Senior Deputy President referred to the provisions of s.531 and indicated that before any orders could be made, he needed to consider whether Kestrel had complied with its obligations under both ss.531(2) and 531(3). His Honour referred to s.531(2) and the evidence and found Kestrel had complied with its obligations under that subsection. He then referred to s.531(3) and found Kestrel had given the CFMEU an opportunity to consult with it over measures to avert or minimise the proposed dismissals, as well as measures to mitigate the adverse effects of the proposed dismissals. In doing so, he noted the evidence of Kestrel “explicitly” inviting Mr Brodsky to suggest such measures in an email message to him sent very soon after the decision that redundancies may be necessary. He also referred to the three meetings where the union had put forward possible measures such as alternative ways for achieving cost reductions, the use of voluntary redundancy and reductions in the use of contractors. He said he was satisfied, based on the evidence, that Kestrel gave due consideration to these suggestions and provided a response to them. He concluded that Kestrel had complied with its obligations under s.531 of the Act and therefore he had no jurisdiction to make any of the orders that the CFMEU had sought. He dismissed the application.

[9] At the conclusion of the hearing, Mr Walkaden asked if the reasons given in transcript were His Honour’s reasons or if he was going to provide further reasons. His Honour advised they were his reasons. The matter was then adjourned.

This appeal

[10] On 3 November 2014, the appellant filed a notice of appeal. Rule 56(2) of the Fair Work Commission Rules 2013 relevantly provides that a notice of appeal under s.604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Fair Work Commission (the Commission) on application by the appellant. The appellant’s notice of appeal was filed 13 days out of time. It seeks an extension of time for filing of the appeal and the respondent opposes any extension being granted.

[11] The usual principles applying to the consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland 1 as follows:

“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal's discretion under Rule 56(2)(c):

• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.”

[12] We first turn to the reasons given by the CFMEU for the delay in filing the notice of appeal.

[13] The appellant identifies a delay in obtaining the transcript of the proceedings before His Honour of 30 September 2014 as the reason for the delay. Why this was so is explained in an affidavit of Mr Walkaden dated 3 November 2014. We have taken all of the matters deposed to in that affidavit into account. In short, Mr Walkaden refers to email communications between the appellant and His Honour’s chambers concerning the appellant’s request that the transcript be ordered so that it could properly consider the 30 September 2014 decision. On 7 October 2014, the appellant was advised that His Honour did not intend to order the transcript. Subsequently, having raised this matter again with His Honour’s chambers, Mr Walkaden relied on advice he was given on 9 October 2014 that the transcript would be ordered and would likely be received in about 3 days or so. However, by 17 October 2014, it had not been received. No further correspondence with His Honour’s chambers is referred to. After a directions hearing before Vice President Hatcher on 3 November 2014, the appellant purchased the transcript.

[14] By 21 October 2014, which was known as being the last day for filing the appeal, Mr Walkaden had decided that his reliance upon being provided with a copy of the transcript “had been misplaced”. His affidavit deposes to commitments he had in a hearing in Newcastle on 21 and 22 October 2014 and another hearing in Mackay on 29 and 30 October 2014. He indicated he was absent from work on 31 October 2014.

[15] We agree with Kestrel that the explanation for the delay is not satisfactory. The appellant is a sophisticated and experienced litigant and Mr Walkaden a competent and experienced advocate. We are confident that the time limits which applied were well-known, as was the importance of complying with those time limits. There could be no assumption an extension of time for filing the notice of appeal would be given.

[16] There is no general practice in the Commission of a member ordering transcript. Indeed, in recent times it has become more uncommon for that to occur. At no time was there any constraint on the appellant ordering the transcript itself.

[17] It was open for the appellant, on or before 21 October 2014, to file a notice of appeal with such grounds as it was able to draft. The reasons for His Honour’s decision were known from 30 September 2014, as was the fact he did not intend to publish any further reasons. The rulings he had made were clear and, in our opinion, adequate to enable a notice of appeal to be filed within the time limits set for doing so.

[18] Finally, we agree with the submission of Kestrel that the need to attend other hearings in Newcastle and Mackay does not constitute an adequate explanation for the delay. The CFMEU had other legal and industrial representatives and access to external solicitors. There is no reason given as to why no other person was able to file a notice of appeal.

[19] We now consider the length of delay. In the context of a time limit of 21 days to file a notice of appeal, a delay of 13 days is significant. The appellant had known, from the time of His Honour’s decision, that the time limit was 21 days from that date.

[20] We turn to consider the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was extended. We commence by noting that it is not in dispute that Kestrel had complied with s.531(2) of the Act. The principal challenge is to the finding that it had also complied with s.531(3).

[21] We have closely considered all the evidence and submissions before His Honour and are not persuaded there is an arguable case he was in error in the finding he made that s.531(3) had been complied with. It was a finding reasonably open to him and, in reaching it, we are not persuaded he erroneously applied the terms of that subsection.

[22] It was open to His Honour to find, as he did, that Kestrel had provided timely, detailed and sufficient information about the reasons for its decision and the likely impacts of it. The information was first provided soon after the decision was made and subsequently, further information was provided. That Kestrel did not provide the appellant with all of the information it requested does not constitute either a legal or factual error in the circumstances of this application.

[23] The information provided allowed the CFMEU to make suggestions as to how to avert or mitigate the adverse effects of the possible redundancies. It did suggest measures to mitigate those effects and Kestrel implemented some of those suggested measures. Other suggestions were properly considered by Kestrel and a response given about them to the CFMEU. It was not suggested by any party that there was any obligation on Kestrel to agree to all of the CFMEU’s proposals.

[24] It was also accepted by His Honour, correctly in our opinion, that ss.531(2) and 531(3) of the Act are separate and discrete obligations on an employer. The obligation in s.531(3) was to give the CFMEU an opportunity to consult with Kestrel about the matters referred to in that subsection. To enable the CFMEU to do so in an acceptable manner did not require the provision to it of the extensive documentation it sought. His Honour found that what was provided enabled the consultation to be properly carried out in a meaningful way. The CFMEU was given a genuine opportunity to influence the final outcome of Kestrel’s decision to reduce the number of employees. We are not persuaded there is an arguable case His Honour was in error in so finding.

[25] A fair reading of the transcript, in particular the exchanges during final submissions, reflects that His Honour was well aware of the fact the section established two discrete obligations. Furthermore, in complying with those obligations, we do not think His Honour erroneously read down the scope of the documentation which may be required to comply with s.531(3) by reference to that referred to in s.531(2). His Honour did not find that the documents which an employer may be required to provide in the context of complying with s.531(3) were those described in s.531(2). What he concentrated on was the scope of the documents sought by the CFMEU which it had argued were necessary to ensure it was afforded an opportunity to consult with Kestrel. He was not persuaded that those documents were necessary for the obligation to be complied with.

[26] We accept that, depending on the context and circumstances of a matter, information additional to that provided in accordance with s.531(2) may well be required to be provided for consultation in accordance with s.531(3) to be meaningful. This was not such a matter.

[27] The next ground of appeal asserts the reasons given for His Honour’s decision were inadequate. We accept that unless there is some provision in the Act to the contrary, there is a duty to give adequate reasons for a decision sufficient to allow a party to exercise any available right of appeal. The reasons need only identify the essential grounds for the decision he or she made, and the relevant facts and legislation taken into account. There is no need for the reasons for decision to be lengthy or elaborate, nor spell out every detail in the reasoning process or deal with every decision, fact or legal argument which was raised by one or other party in the proceedings. 2

[28] The circumstances in which His Honour gave his reasons in this matter also need to be considered. The appellant had requested the application be listed on an urgent basis and that His Honour determine the application on the day of the hearing. In those circumstances we consider the reasons given, although short, were adequate. We have decided that this is not a ground of appeal, in the context of the originating application here made, which would persuade us to grant permission to appeal.

[29] Next, the CFMEU submits that by failing to publish a decision His Honour did not comply with s.601 of the Act. In our opinion, even if this was to be accepted, it does not establish that in reaching the decision that Kestrel had complied with its obligations under s.531 His Honour was in error. We are not persuaded this appeal provides an appropriate occasion to consider the requirements of s.601 of the Act and whether a decision given in transcript is adequate to comply with the section. This is not a ground which would weigh in favour of the grant of permission to appeal being given.

[30] The CFMEU submits there will be no real prejudice to Kestrel if time were extended. In making this submission, however, it notes that even if His Honour’s decision is quashed, that will not change the fact Kestrel has implemented its organisational changes and the reduction in permanent employees has occurred. It accepts that fact cannot be reversed. Nevertheless, it seeks for this Full Bench to use the occasion of this appeal to consider the obligations that should be placed upon an employer to consult a relevant union under s.531(3) and the types of orders that may be made in the exercise of a member’s discretion to do so under s.532.

[31] For the reasons we have already given, we are not persuaded that it is arguable His Honour was in error in finding that Kestrel had complied with its obligations under s.531. Accordingly, he did not need to consider the nature of orders which might have been appropriate to be made under s.532 had he not so found. The application below proceeded on the specific facts before him. His Honour’s decision does not, with respect to him, establish any general precedent for further applications which may be made in the black coal mining industry. This appeal is not the occasion for entertaining the broad issues the CFMEU wishes to address. This is particularly so as there is no practical utility which would be achieved by us doing so.

Conclusion

[32] We have not been persuaded to exercise our discretion to extend the time for filing of this appeal. Further, had we been persuaded to do so, for the reasons we have given the grounds of appeal are not such as to enliven the public interest or to establish any other reasons such as to warrant the grant of permission to appeal. 3

SENIOR DEPUTY PRESIDENT

Appearances:

Mr B Docking, counsel, and Mr A Walkaden for the Construction, Forestry, Mining and Energy Union.

Mr M Smith and Ms C Lee, solicitors, for Kestrel Coal Pty Ltd.

Hearing details:

Sydney (with video link to Brisbane).

2015.

January 13.

 1   [2014] FWCFB 4822.

 2   Barach v University of New South Wales [2010] FWAFB 3307; Shop, Distributive and Allied Employees' Association v OPSM Pty Ltd Print Q2858.

 3   For example, no substantial injustice would result if permission were refused, nor has a clear case of error been demonstrated.

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