[2015] FWCFB 6323
The attached document replaces the document previously issued with the above code on 16 October 2015.
In paragraph [18] typographical errors in the matter numbers have been amended.
Shomaice Zowghi
Associate to Vice Catanzariti
Dated 16 October 2015
| [2015] FWCFB 6323 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT CATANZARITI |
SYDNEY, 16 OCTOBER 2015 |
Appeal against decision [[2012] FWAA 3678] of Commissioner Cloghan at Perth on 27 April 2012 in matter number AG2012/4959
Appeal against consent order PR539220 of Commissioner Cloghan at Perth on 22 July 2013 And decision of Commissioner Cloghan [2013] FWC 5636] of 14 August 2013 in matter number C2013/1088
Appeal against decision [[2014] FWC 7019] of Commissioner Cloghan at Perth on 22 July 2013 and 14 October 2014 in matter numbers C2014/4203, C2014/4204, C2014/4205, C2014/4206, C2014/4207 and C2014/4208.
Appeal against directions of Commissioner Williams by email on 18 March 2015 in matter number U2014/5970
[1] This is a decision in relation to 23 appeals against 4 decisions lodged by the same 6 applicants against the same Respondent. The Applicants have referred to themselves throughout the course of these proceedings as the “Concurrent Applicants” and so shall they be referenced in this decision. This group comprises the following individuals:
[2] As the 23 appeals arose from a substantially common substratum of facts and involved common parties, the 4 sets of appeals were heard together for efficiency and at the request of the Concurrent Applicants.
[3] The appeals were against the following 3 decisions and one consent order of Commissioner Cloghan and 1 set of directions issued by Commissioner Williams:
[4] There was much correspondence and documentation filed in the lead up to the hearing including lengthy written submissions filed by both parties in relation to all four sets of appeals. The Full Bench has read and considered all of the material filed by the parties including all of the submissions, correspondence and relevant authorities.
[5] Prior to the hearing, the Respondent sought to have legal representation and filed written submissions to this effect. The unrepresented Concurrent Applicants objected to this on the basis that the Respondent is a well-resourced company and that there were no complex issues. The issue was considered in a directions hearing held on 10 June 2015 and for the same reasons outlined in our previous decision in King v Patrick Projects Pty Ltd 1, permission to appear was not granted to the Respondent.
[6] On the day of the appeal hearing, Mr Strauss was the spokesperson for the Concurrent Applicants and was given the opportunity to make oral submissions, following which Ms Ferrier, the legal counsel of the Respondent’s parent company, was given the opportunity to make oral submissions on behalf of the Respondent.
Nature of the Appeals
[7] All 23 appeals were filed pursuant to s.604 of the Act and listed for permission to appeal only. Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker. 2 An appeal may only proceed with the permission of the Fair Work Commission (the Commission); there is no automatic right to appeal.
[8] Section 604 of the Act provides:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(1) A person may appeal the decision by applying to the FWC.”
[9] If we are satisfied that it is in the public interest to do so, we must grant permission to appeal.
[10] The test for determining the public interest has been described as follows: 3
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
[11] Otherwise, the grounds for granting permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 4
[12] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 5 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:6
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[13] We will consider the four sets of appeals in turn below starting first with the appeal against the decision of Commissioner Williams and then the three remaining sets of appeals against the decisions of Commissioner Cloghan.
Appeal against directions of Commissioner Williams issued 18 March 2015 in matters U2014/5970, U2014/983, U2014/1059, U2014/982 and U2014/1008
[14] The matter numbers listed above are in relation to the Concurrent Applicant’s (excluding Daniel King’s) unfair dismissal applications. These matters were previous allocated to Commissioner Williams. It was noted at the commencement of the appeal hearing that the Full Bench intends to reallocate these matters to Senior Deputy President Drake who will hear the substantive merits of the unfair dismissal matters following the outcome of these 23 appeals.
[15] These set of appeals are against directions that were issued by Commissioner Williams on 18 March 2015 due to non-compliance with previous directions, for the Concurrent Applicants to serve their evidence and submissions on the Respondent by a certain date.
[16] In circumstances where the substantive unfair dismissal matters of the Concurrent Applicants are to be heard by Senior Deputy President Drake, it was decided during the hearing by consent of the parties that any new directions in these matters will be issued by Senior Deputy President Drake in due course when the matters are before her and these directions will take into account any further requests such as for Notices to Produce.
[17] In these circumstances, the previous directions of Commissioner Williams and the appeals in relation to those directions fall away.
[18] Accordingly, we order that that matters C2015/2248, C2015/2246, C2015/2244, C2015/2243 and C2015/2245 are dismissed.
Appeals against the decisions and orders of Commissioner Cloghan
Background
Having dispensed with 5 out of the 23 appeals above, there are 18 appeals remaining, or 3 sets of appeals, that relate to the following decisions:
1. 6 appeals against the decision [2012] FWAA 3678 of Commissioner Cloghan at Perth on 27 April 2012 in matter number AG2012/4959 (A1)
2. 6 appeals against consent order PR539220 of Commissioner Cloghan on 22 July 2013 and the decision of Commissioner Cloghan [2013] FWC 5636] of 14 August 2013 at Perth in matter number C2013/1088 (A2)
3. 6 appeals against the decision [2014] FWC 7019 of Commissioner Cloghan at Perth on 22 July 2013 and 14 October 2014 in matter numbers C2014/4203, C2014/4204, C2014/4205, C2014/4206, C2014/4207 and C2014/4208. (A3)
[19] The first of these 3 sets of remaining appeals, referred to in this decision as A1, are appeals against a decision 7 of Commissioner Cloghan on 27 April 2012 in matter AG2012/4959 approving an application for a greenfields enterprise agreement known as the Patricks Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (Agreement) made by the Respondent pursuant to s. 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement was approved by the Commissioner in a short decision and the nominal expiry date of the Agreement was 30 June 2015.8
[20] The appeals referenced in this decision as A2 are in relation to an application made by the Maritime Union of Australia (MUA) seeking an urgent conference to deal with the dispute within a dispute settlement procedure under the abovementioned Agreement and pursuant to s. 739 of the Act. The dispute primarily related to the involuntary redundancy of 62 permanent employees at the Australian Maritime Complex, Henderson, Western Australia (AMC) and its consequences for approximately 85 casual employees who were employed to work on the Gorgon Project. The primary dispute was resolved by way of a consent order (Consent Order) issued 22 July 2013 but the minutia of the selection criteria for the redundancy was agreed to be left up to the parties to agree on. They were unable to reach agreement on the selection criteria so the matter came before the Commission to hear the party’s respective submissions. The Commissioner considered the parties submissions and in his decision on 14 August 2013, set out some “headline” criteria in the identification of the prioritisation of employees to be made redundant and also assigned weightings to each of the criteria accordingly. 9
[21] The appeals referenced in this decision as A3 are in relation to a jurisdictional decision of Commissioner Cloghan made on 14 October 2014 in matter numbers C2014/4203, C2014/4204, C2014/4205, C2014/4206, C2014/4207 and C2014/4208 are in relation to an application made by the Concurrent Applicants against the Respondent pursuant to clause 13 of the Agreement and s. 739 of the Act in relation to a dispute allegedly arising out of the Agreement. The Concurrent Applicant’s employment ceased for reasons of redundancy on 20 March 2014. Clause 13 of the Agreement set out the procedure for the settlement of disputes and grievances for employees under the agreement. The Respondent raised two jurisdictional questions for determination:
1. Do each of the Applicants have standing to bring the applications; and
2. Are the alleged disputes able to be determined by the Commission pursuant to clause 13 of the Agreement.
[22] The parties agreed that the two jurisdictional questions were to be determined by way of written submissions. 10 The Commissioner ultimately found in his decision that there was no jurisdiction for the Commission to hear the dispute for the following reasons:
“[55] The Commission has the power to arbitrate the disputes between the parties subject to the limitation imposed in s.739 of the FW Act.
[56] For the Applicants, the Commission cannot vary the terms of Clause 13 of the Agreement to include the provision that an ex-employee can refer a matter to the Commission for resolution.
[57] At its broadest, subsection 739(1) of the FW Act enables the Commission to deal with a dispute (subject to certain exceptions), if an enterprise agreement contains a term empowering the Commission to deal with a dispute. Pursuant to s.186(6)(a) of the FW Act the term must include a procedure that allows the Commission to deal with the dispute. If the enterprise agreement contains a procedure, the Commission cannot exercise any powers beyond the term of the enterprise agreement. In these applications, the Commission is empowered to deal with the dispute after certain procedural steps have taken place. Those procedural steps have been asserted as fact but not supported. The power of the Commission is conditional - those conditions have not been met. Accordingly, the Commission has no power to deal with the applications.
[58] For the Commission to have to exercise any power pursuant to paragraph 13.2(c) of the Agreement, it is necessary that the precursor steps be complied with. If employees wish to engage the operation of Clause 13 of the Agreement, he, she or they, must comply with its obligations.
[59] For the above reasons, all the applications will be dismissed for want of jurisdiction. An order to this effect is issued jointly with this Decision.”
[23] Accordingly, the matter was dismissed.
Submissions of the Concurrent Applicants
[24] The Concurrent Applicants have filed voluminous submissions in relation to these appeals and this decision will not traverse every single submission as many of them are plainly not relevant to the question of permission to appeal. However, we note that all material submitted by the Concurrent Applicant’s has been considered in writing this decision.
[25] The Concurrent Applicants submitted that in relation to A1 and the decision of the Commissioner to approve the Agreement on 27 April 2012, unbeknown to them at the time, the agreed employment conditions were contained in two documents - the Agreement and a separate unregistered deed between the MUA and the Respondent (Deed). The Concurrent Applicants submitted that the conditions contained in the Deed were not included in the Commissioner’s decision on 27 April 2012, even though the Agreement and Deed were signed and executed on the same day and witnessed by the same legal counsel of the Respondent. In the Concurrent Applicant’s submission, the employer intentionally concealed the Deed from the Commission and the Commission would not have approved the Agreement if it was aware of the Deed. Moreover, the Concurrent Applicants contend that the Agreement could not be properly characterised as a greenfields agreement and was a brownfields agreement. In the submission of the Concurrent Applicants, the material contained in the Deed could and should have been included in the Agreement particularly in relation to training, which is referred to in clause 30 of the Agreement and clause 12.4 of the Deed.
[26] In relation to A2, the Concurrent Applicants submitted that the Commissioner’s Consent Order on 22 July 2013 removed the requirements of training as a paid work activity from the Agreement. They submitted that the 27 April 2012 and 22 July 2013 decision were both made by the same Commissioner, who was aware that the agreed employment conditions contained training and the conditions within the Agreement and the Deed required training to be provided as a paid work activity for all of the relevant high risk licenses and all of the plant machinery on site. The Concurrent Applicants submitted that this training should not have been removed from the agreed employment conditions without any trade off. They submitted that in contemplating the Deed and removing agreed employment conditions contained within the Deed in the Consent Order, the decision effectively brought in the Deed as a Fair Work instrument. They submitted that the reason the Respondent went about the process in this way was that they were seeking to remove the liability of having to train people before they dismissed them because prior to 22 July 2013. The Respondent was otherwise unable to dismiss anyone until it had met the requirement of training as a paid work activity for all relevant high risk licenses and plant machinery onsite. They submitted that the decision under appeal in A2 authorise the redundancies but removed the requirement that training as a paid work activity had to be completed before the redundancies started. They see the decision in A2 as evidence of a conspiracy to change the agreed employment conditions to the detriment of the employees.
[27] The Concurrent Applicant’s submitted that in relation to A3, the decision manifests injustice and the jurisdictional question should have been the subject of oral evidence and not just written submissions. They contend that the decision having being made on the papers was unfair and an ambush.
[28] We note that appeals in A1, A2 and A3 were all made considerably out of time pursuant to Rule 56(2) of the Fair Work Commission Rules 2013 (Rules) which requires that appeals be lodged within 21 days after the date of the decision being appealed. Specifically,
(a) A1 was filed 1,054 days after the allowable 21 days;
(b) A2 was filed 585 days, in relation to the decision and, 608 days in relation to the Consent Orders, after the allowable 21 days; and
(c) A3 was filed 160 days after the allowable 21 days.
[29] In respect of the time delay in bringing the appeal, the Concurrent Applicant’s submitted that they were unable to challenge the decision at the time of its making as they only understood the process in hindsight as the proceedings progressed, with more knowledge of how the process worked and what the Respondent was doing. They submitted that in late 2013 they engaged a ‘Fair Work advocate’ to represent them in the proceedings. They submitted that their advocate advised them not to appeal the decisions of the Commissioner and they followed his advice. Then, on 11 March 2015, their advocate filed a form F54 and ceased to act for the Concurrent Applicants on the eve of when their evidence was due in their unfair dismissal proceedings before Commissioner Williams. They submitted that this left them in the lurch and they were forced to pick up the matter themselves and it took some time for them to understand the process and arrive at the conclusion that they sought to appeal the decisions. They also submitted that there were other proceedings taking place such as a security of costs application heard by Commissioner Williams which further delayed the process.
Submissions of the Respondent
[30] The Respondent’s position was that leave to appeal is not in the public interest and the Commissioner did not err in law or fact in approving the Agreement in accordance with the Act. The Respondents contend that the Concurrent Applicants:
(a) have made an application to appeal the 3 decisions of the Commissioner significantly out of time and have not provided relevant reasons or grounds on which an extension of time should be granted;
(b) have failed to demonstrate how leave to appeal is in the public interest in relation to A1, A2 and A3;
(c) in relation to A1, have misconstrued Commission Cloghan’s factual findings that section 186 and 197 of the Act have been met; and
(d) in relation to A2, have misconstrued the effect of the Consent Orders on their unfair dismissal applications before the Commission;
(e) in relation to A1 and A2 and A3, have erroneously sought to incorporate terms of an unregistered memorandum of understanding Deed made between the MUA and the Respondent into the Patricks Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015;
(f) in relation to A3, have misconstrued the Commissioner’s factual finding that s.186(6)(a) and 739(1) operate together with clause 13 of the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (Agreement) such that Commission could not exercise any powers beyond clause 13 of the Agreement;
[31] In relation to the contention that the Agreement was a brownfields agreement, the Respondent contends that it was a greenfields agreement in accordance with section 172(2)(b) of the Act for the following reasons:
(a) it was made between the Respondent and an employee organisation, being the MUA;
(b) the Agreement related to a genuine new enterprise that the Respondent was establishing; and
(c) as at the time the Agreement was made, the Respondent had not employed any of the persons who would be necessary for the normal conduct of the enterprise and would be covered by the Agreement.
[32] In relation to the Deed, the Respondent submitted that it existed to accommodate some impermissible matters because the Agreement could only contain terms within the scope of the permitted matters in accordance with s. 172(1) of the Act. The Deed was made between the MUA and the Respondent to address matters not permitted for the purposes of section 172(1) of the Act including matters not pertaining to the relationship between the Respondent and the employees of the MUA as an employee organisation. The Respondent submitted that it is not unusual for employers and unions to make unregistered agreements, usually in the form of a deed, that concerned matters that would not be included in a registered agreement because of the applicable content rules and permitted matters.
[33] Further and in relation to A2, the Respondent submitted that the Commission was not required to consider the matters raised by the Appellant’s at the time of making the Consent Orders and the Decision as these were not matters in dispute between the MUA and the Respondent in C2013/1088. The Respondent’s submitted that the Commissioner properly applied Part 2-4 and 6-4 and sections 186 and 739 of the Act and correctly identified the legislative authority to deal with the dispute. He was not mistaken as to facts relating to the nature of the proceedings before him or the nature or background to the MUA application. The Commissioner held a number of conciliation conferences on 19, 20 and 22 July 2013 following which, and with the consent of both the MUA and the Respondent, the Commission made the Consent Orders.
[34] In relation to A3, the Respondent submitted that the Commissioner correctly identified on the evidence and materials before him that the Concurrent Applicants could not be parties to the dispute because their employment had been terminated prior to the Concurrent Applicants making an application to the Commission, bringing the employment relationship to an end having the result that the Agreement ceased to apply to or have effect on the Concurrent Applicants. Further, the Concurrent Applicant’s, even if they had made the application prior to termination, did not satisfy the requisite steps in clause 13 of the Agreement such that the matters could be referred to the Commission. The Respondent also noted that it was agreed by the parties that the matter would proceed by way of written submissions and it was misleading to suggest otherwise.
[35] In general and as a result of all the matters above, the Respondent submitted that the appeals were frivolous and vexatious and their continuation would be unreasonable in circumstances where it is reasonably apparent to the Concurrent Applicants they have no reasonable prospects of success.
Consideration
[36] Rule 56(2) of the Rules is relevant to notices of appeals filed out of time. It provides as follows:
“(2) The notice of appeal must be lodged:
(a) within 21 calendar days after the date of the decision being appealed against; or
(b) if the decision was issued in the form of an order – within 21 calendar days after the date of the order; or
(c) within such further time allowed by the Commission on application by the appellant
Note: Subsection 598(4) of the Act provides that a decision may be made as an order.”
[37] Rule 56(2)(c) confers a discretion on the Commission to extent the time within which the appeal is to be lodged. In exercising its discretion, the Full Bench may have regard to the following relevant matters set out in the authority of Tokoda v Westpac Banking Corporation 11:
(a) whether there is a satisfactory reason for the delay;
(b) the length of the delay;
(c) the nature and grounds of appeal and the likelihood of one or more of those grounds being upheld if time was extended; and
(d) any prejudice to the Respondent if time were extended.
[38] In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.
[39] The Concurrent Applicant’s submitted the reasons for their delay in filing in the Notice of Appeal are as follows:
“This appeal involves an instrumental decision where imperative and material agreements were varied by the Fair Work Commission to the severe detriment of employees.
These imperative and material agreements were only confirmed as being in evidence by the Full Bench of the Fair Work Commission during the hearing of C2015/1994 on 31 March 2015.
Before 31 March 2015 there existed no definition that the evidence of the deed in particular was accepted into evidence.
This appeal was not able to be made earlier as the imperative and material agreements were only confirmed by the Full Bench as being in evidence in the matters that are currently before the Fair Work Commission.
Regardless of timing and requirement for extension of time, it remains very strongly in the public interest to hear this appeal as it is significantly interrelated to many other matters before the Fair Work Commission, especially the concurrent unfair dismissal applications.
The public interest in granting the extension of time is that time cannot run out for justice, rather, there is always time for justice.
The deception of the employer has meant that the employees and the Fair Work Commission alike simply has not known or understood the full extent of the lie."
[40] At the hearing the Concurrent Applicant’s further submitted that the reason for the delay was that they were represented in the proceedings by a Fair Work advocate who unexpectedly ceased to act for them on 11 March 2015. Up until this time, the Concurrent Applicant’s submit that they were advised by their advocate not to appeal the 3 decisions of Commissioner Cloghan so they had not contemplated appealing. However, once he ceased to act for them, the concurrent Applicant’s contemplated whether or not they should have relied on his advice about those matters and started to try and understand the process for themselves. Only after their representative ceased to act did they decide to file the appeals against the 3 decisions of Commissioner Cloghan.
[41] We are not persuaded that the reasons given by the Concurrent Applicants warrant the exercise of the discretion to grant an extension of time to file the appeal. Neither the reasons given in their Notice of Appeal, nor the reasons given in their written submissions or at the hearing are sufficient to overcome significant delays. The question of the competence of the representative is not a question before the Full Bench and it is not for the bench to comment on the advice given to the Concurrent Applicants not to appeal the decisions earlier in time. It was a matter for the Concurrent Applicants to decide to follow the advice of their advocate in the past, and this does not form an adequate reason for granting an extension of time. In relation to the assertion in the Notice of Appeal that the outcome of matter C2015/1994 somehow affected the Concurrent Applicant’s ability to bring the appeal, we do not agree. Whether or not the material the subject of the orders to produce in matter C2015/1994 were accepted as evidence is not a relevant consideration and was not an impediment to filing an appeal against the Commissioner’s previous decisions. We are not minded to grant an extension of time in relation to A1, A2 or A3 and the appeals can all be dismissed on this basis alone.
[42] Quite apart from the extension of time issue, we note that in relation to A2, the MUA was a party to the consent orders made on behalf of its members on 22 July 2013 that resulted in changes being made to the training conditions contained in the Deed. If the Concurrent Applicants are unhappy with the way that the MUA represented its members in relation to the bargaining process or those proceedings, then that is not a matter within the purview of the Commission. It is not for the Commission to comment on the types of concessions that are made by unions acting on behalf of their members during the bargaining processes or proceedings before the Commission.
[43] Further and in relation to A3, we consider that the Commissioner correctly identified that he had no jurisdiction to hear a s.739 matter in circumstances where the applicants were no longer employed. An application for the Commission to deal with a dispute in accordance with a dispute settlement procedure of an Enterprise Agreement pursuant to s.739 of the Act can only be heard when the applicants are employed. This is an uncontroversial jurisdictional point supported by manifold authorities and the express provisions of the Act. There was no error in the Commissioner’s approach in that regard and it was not unreasonable for the matter to be heard by way of written submissions in the particular circumstances. In any event, we note that it was heard by way of written submissions by consent of both parties. The outcome reached was within the range of outcomes reasonably available to the Commissioner and does not demonstrate any manifest injustice or counter-intuitive result.
[44] While the Full Bench is sympathetic to the fact that there may have been matters contained in the Deed that could have been included in the Agreement approved by the Commissioner on 27 April 2012, it is clear that the Agreement has since passed its nominal expiry date. A new agreement has been entered into between the parties and approved by the Commission, rendering the previous Agreement no longer relevant. As such, the appeals have no utility even if they were to proceed with an extension of time and would be dismissed on a no utility basis in any event.
[45] We have reviewed all the relevant material before the Commission and we are not persuaded that an arguable case of appealable error has been demonstrated by the Concurrent Applicants in A1, A2 and A3. No basis upon which the public interest is attracted has been identified.
Conclusion
[46] The substantive matters in U2014/5970, U2014/983, U2014/1059, U2014/982 and U2014/1008 are allocated to Senior Deputy President Drake for programming. New directions will be issued by her chambers in place of previous directions issued by Commissioner Williams.
[47] We are not satisfied that it would be in the public interest to grant permission to appeal. Accordingly, as required by s.400(1) of the Act, permission to appeal is refused for all remaining matters in A1, A2 and A3 and the appeals are dismissed.
VICE PRESIDENT
Appearances:
Mr C Strauss for the Concurrent Applicants.
Ms E Ferrier for the Respondent.
Hearing details:
17 August
2015
Perth via video link to Sydney.
2 Coal and Allied v AIRC (2000) 203 CLR 194 at 203–4 per Gleeson CJ, Gaudron and Hayne JJ.
3 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
4 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210 at [7].
5 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
6 Ibid.
8 [2012] FWAA 3678 at [8].
9 [2013] FWC 5636 at [20]-[60].
10 [2014] FWC 7019 at [7].
11 [2012] FWAFB 3995 at [3] as relied on in Mr Paul Warner Dobson v Qantas Airways Limited [2013] FWCFB 10037.
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