| [2020] FWCFB 638 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
United Workers’ Union
v
Wilson Security Pty Ltd T/A Wilson Security
(C2019/5775)
VICE PRESIDENT CATANZARITI |
SYDNEY, 7 FEBRUARY 2020 |
Appeal against decision [2019] FWC 5966 of Commissioner Williams at Perth on 29 August 2019 in matter number B2019/618.
[1] On 29 August 2019 Commissioner Williams (Commissioner) issued a Decision 1 and order2 dismissing an application initiated by United Voice (the Appellant) for a majority support determination. On 19 September 2019, the Appellant lodged a Notice of Appeal under s.604 of the Fair Work Act 2009 (Cth) (FW Act).
[2] The parties consented to the appeal being determined on the papers. 3 We are satisfied that the appeal can be heard without persons making oral submissions and pursuant to s.607(1) of the FW Act, we determine this appeal on the papers and without an oral hearing.
[3] On 1 August 2019, the Appellant lodged a ‘Form F30 – Application for a majority support determination’ (Application) with the Fair Work Commission (Commission) for a majority support determination on behalf of security officers employed by Wilson Security Pty Ltd trading as Wilson Security (Respondent). The Application contained a confidential and signed petition from employees who expressed a desire to commence bargaining for an enterprise agreement. The Respondent opposed the Application on the basis that they were not persuaded that a majority of employees who would stand to be covered by the agreement wanted to bargain for the proposed enterprise agreement.
[4] In the Decision, the Commissioner decided:
“[4] The Commission convened a conference with the parties on Tuesday, 13 August 2019.
[5] Wilson Security oppose the Application on the basis that they are not persuaded that a majority of employees who will be covered by the proposed agreement want to bargain for an enterprise agreement.
[6] Attached to the Application United Voice had appended a confidential list of employees who they submit signed a request to bargain with Wilson Security for an enterprise agreement to cover their employment.
[7] The conference concluded with the parties agreeing that United Voice would provide more information to Wilson Security regarding the petitions that had been signed by employees, how the names and signatures were obtained, the number of employees and whether they were all security guards rather than team leaders or managers.
[8] Wilson Security agreed to then either confirm to the Commission that it agreed to the Application, and in essence agreed to bargain, or alternatively provide the Commission confidentially, a list of all the employees whom would be covered by the proposed agreement.
[9] On Wednesday, 21 August 2019, Wilson Security provided to the Commission a confidential list of employees who they assert as at 1 August 2019, performed work at Department of Defence sites in Western Australia and who would be covered by an enterprise agreement as proposed by United Voice.
[10] To determine this matter the Commission has compared the list of employees United Voice provided with the Application to the list of employees Wilson Security have provided, and this demonstrates that there is not a majority of employees who would be covered by the proposed agreement who were employed by Wilson Security at the time the Application was made who want to bargain.”
[5] On 19 September 2019, the Appellant lodged a notice of appeal which contained one ground of appeal. That appeal ground was:
• The Commissioner failed to afford the Appellant procedural fairness in relation to the conduct of the matter. The Appellant was not afforded the opportunity to test the evidence put forward by the Respondent. 4
[6] The Appellant advanced the following grounds for permission to appeal in the public interest: 5
• The preservation of public confidence in the administration of justice is a matter of public interest and could be undermined by decisions that were manifestly unjust;
• The list of employees submitted by the Respondent might not have been accurate and the Appellant does not know how many employees are on the employee list submitted by the Respondent, nor the classifications of those employees. It is in the public interest for a party to be able to test any evidence that is put forward by another party during the course of a matter; and
• The decision was manifestly unjust in that the Appellant was not afforded the same opportunity that the Respondent had to test the evidence available.
Appellant’s Submissions
[7] The Appellant submitted that the list of employees submitted by the Respondent may have included employees which fell outside the scope of coverage contemplated by the enterprise agreement.
[8] The Appellant submits that they were not given the opportunity to test the list of employees that the Respondent provided to the Commission. Further, the Appellant submits that the Respondent was afforded the opportunity to test the signed petition that the Appellant provided. In particular, the Appellant submits that they did not have the opportunity to query:
(1) the number of employees on the list;
(2) the classifications of those employees; and
(3) the status of the employees, such as the number of casual employees on the list.
[9] The Appellant submits that due to the highly casualised workforce within the security industry, the list prepared by the Respondent may have contained a large number of casual employees who had not operated on a Department of Defence site for a long period of time. If the list were to contain casuals that had not worked recently, the Appellant submits that these employees should be excluded from the list. 6
[10] The Appellant submits that not being provided with the opportunity to view and test the evidence prepared by the Respondent is a matter of public interest. The preservation of public confidence in the administration of justice is a matter of public interest and could be undermined by decisions that are manifestly unjust. 7
Respondent’s Submissions
[11] The Respondent submits the following with respect to the appeal request:
(1) There is nothing remarkable about the conduct of the Commission in this matter which would amount to an appealable error or a ground where permission to appeal should be granted. 8
[12] In summary, the Respondent submits:
(1) that the Commission can use any method it considers appropriate to determine whether there is a majority of employees who wish to bargain and there is nothing remarkable in this matter which would have required the Commission to seek more detailed information; 9
(2) that the Act does not confer any right of access to the list supplied by the Respondent in this matter; 10
(3) that in light of the public interest to preserve privacy and freedom of association, the Appellant has not provided any information to demonstrate the need for the Commission to provide the list supplied by the Respondent to the Appellant; 11
(4) that the basis for the Appellant’s concern with the Commission’s conduct in the matter is premised on generalised and hypothetical commentary and not based on any supporting authority or data; 12 and
(5) that the Commission’s conduct of the matter in reviewing the list and issuing a Decision on its own review and assessment did not amount to a lack of procedural fairness as suggested by the Appellant. 13
[13] The Commission will grant permission to appeal where it is in the public interest to do so. 14 The applicable test in assessing whether a matter is in the public interest was summarised by the Full Bench in GlaxoSmithKline Australia Pty Ltd v Colin Makin15 as follows:
“[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 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] HCA 61; (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.” 16
[14] Permission to appeal may be granted if the decision is attended with sufficient doubt to warrant its reconsideration or that a substantial injustice may result if leave is refused. 17
[15] Section 237 of the FW Act provides:
“When the FWC must make a majority support determination
Majority support determination
(1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
[16] Section 577 of the FW Act provides:
“Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”
[17] The Explanatory Memorandum to the Fair Work Bill provides:
“It is at the discretion of FWA what method it uses to work out whether a majority of the employees want to bargain (subclause 237(3)). Methods might include a secret ballot, survey, written statements or a petition. A majority support determination comes into operation on the day on which it is made (subclause 237(4)).” 18
[18] A Full Bench of the Commission in Alcoa described the obligations on the Commission in s.237 applications as follows: 19
“[24] Alcoa proceeded on the basis that its appeal was against a decision which involved the exercise of a discretion, and it was therefore necessary for it to demonstrate error of the type identified in House v The King. Insofar as the non-jurisdictional issues raised by its appeal are concerned, it was correct to do so. Although under s.237(1), the Commission “must” make a majority support determination if an application has been made and the Commission is satisfied of the matters set out in s.237(2), the task of determining whether the “fairly chosen” requirement in s.237(2)(c) and the “reasonable in all the circumstances” requirement in s.237(2)(d) are satisfied can properly be characterised as involving the exercise of a discretion. The decision-making process with respect to these two requirements is one in which no one consideration and no combination of considerations is necessarily determinative of the result and the decision-maker is allowed some latitude as to the choice of the decision to be made. In the recent Federal Court Full Court decision in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd the assessment of whether the “fairly chosen” requirement in s.186(3) (where it is one of the requirements for approval of enterprise agreements) was satisfied was described as involving a “very broad judgment” and the exercise of an “independent discretion”, and we see no reason to take a different view of the requirement in s.237(2)(c). Similarly in Transport Workers’ Union of Australia v Hunter Operations Pty Ltd the requirement in s.230(1)(c) for the making of a bargaining order that the Commission be “satisfied that it is reasonable in all the circumstances to make the order” was described as requiring “a broad evaluative judgment that is in the nature of a discretionary decision”, and we consider that s.237 (2)(d) can be characterised in the same way. Therefore it is necessary for Alcoa to demonstrate, in order to succeed in its appeal, that the Commissioner acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, did not take into account some material consideration, or reached a result which, on the facts, was unreasonable or plainly unjust.” [footnotes omitted]
[19] The appeal alleges a lack of procedural fairness. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd 20 Katzmann and Rangiah JJ said:
“[125] What will constitute a reasonable opportunity for a party to present his or her case in a given situation depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Conciliation & Arbitration Commission; Ex parte Angliss (1969) 122 CLR 546 at 552-553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. Procedural fairness requires that the statutory power be exercised fairly: that is, in accordance with procedures that are fair to each party in light of the statutory requirements, the interests of the parties and the interests and purposes, whether public or private, which the statute seeks to advance or permits to be taken into account as legitimate considerations: Kioa v West (1985) 159 CLR 550 at 585, per Mason J.”
[20] Was procedural fairness afforded? The Appellant’s Application provided a description of the group of employees to be covered by the proposed agreement in clause 2.2 as follows:
“The group of employees, being security officers of the Respondent engaged to perform work at Department of Defence facilities within Western Australia, is fairly chosen as this group is operationally distinct from the other security officers employed by the Respondent. The group only works in Department of Defence facilities and the nature of their work is operationally specific and distinct to the other commercial sites that the Respondent employs security officers at.” 21
[21] The Application also provided a description of the ‘proposed method for determining majority support’:
“United Voice attaches in confidence a list of employees that have signed a request to bargain with the Respondent for an enterprise agreement to cover their employment (see Attachment 3). United Voice asks that the Fair Work Commission keeps the list confidential to protect the privacy of those employees who have signed the request.
United Voice believes that a majority of the chosen group (as set out in 2.2 above) want to bargain for an enterprise agreement. However the list of relevant employees will need to be obtained from the Respondent.” 22
[22] In Attachment 1 to the Application the Appellant again provided a description of the people that it sought to commence negotiations for an enterprise agreement with. Attachment 1 stated:
“Following discussions with our members, employed by Wilson Security Pty Ltd and working at Department of Defence facilities in Western Australia, we give you notification that that [sic] we wish to commence negotiations for an enterprise agreement that will cover those workers.” 23
[23] The Appellant’s only proposed method for determining majority support was to provide a list of employees that had signed a request to bargain with the Respondent for an enterprise agreement, and that ‘the list of relevant employees will need to be obtained from the Respondent’. 24 The Appellant did not then propose what was to be done with the two lists. This was left to the Commission to determine. Beyond this the Application and Attachment 1 did not set out a method for determining the matter. Furthermore, the Application and Attachment 1 to the Application did not limit the coverage of the proposed agreement to exclude employees that the Appellant claimed it had concerns about in its written submissions. This includes ‘employees that fell outside of the scope of employees to be covered by an enterprise agreement’, such as ‘the classifications of those employees and the status of the employees such as the number of casual employees’.25 The Application did not specify the classifications of and number of casual employees.
[24] The issue before the Commissioner was whether or not a majority of employees who would be covered by the proposed agreement wanted to bargain for an enterprise agreement. In determining whether a majority existed, the Commissioner did not have regard to the issue of how employees of a particular classification were to be considered because the Appellant had not raised this as an issue to be determined. The Commissioner could only decide the matter based on the submissions and Application provided by the Appellant. As the Commissioner said in the Decision, the conference concluded with the parties agreeing that United Voice would provide more information to Wilson Security regarding the petitions that had been signed by employees, and Wilson Security would then agree to the Application or alternatively provide the Commission with a confidential list. 26 United Voice did not request anything beyond this, such as an opportunity to make closing submissions. In any event, closing submissions would, on one view, arguably not be the appropriate vehicle for new issues to be raised, including the issues relating to casuals and classifications of employees.
[25] Turning to deal with the specific terms of the FW Act, pursuant to s 237(3) of the FW Act, the Commission is entitled to use ‘any method [that it] considers appropriate’ to determine whether a majority of employees wish to bargain. In the Decision, the method the Commissioner used to determine whether a majority of employees who would be covered by the proposed agreement wanted to bargain for an enterprise agreement was to compare the list of employees the Appellant provided with the Application to the list of employees the Respondent provided. This method is consistent with the practice in some Commission decisions. 27
[26] The Commission could have taken the course of action proposed by the Appellant, which was for the Respondent to be directed to serve the Appellant ‘a redacted copy of the list of employees’. 28 However, there is no evidence that the Appellant requested that it take this course of action, and there is no claim in the Appellant’s submissions that such a request was made and denied. Again, the Commission acted in accordance with the course of action proposed by the Appellant, to the extent that a course of action was proposed. Additionally, there is nothing objectionable about the course of action taken by the Commissioner. The Commissioner acted in accordance with s 237 of the FW Act by informing himself about the matters set out in the section. In the circumstances, procedural fairness was afforded.
[27] An appeal hearing is not a hearing at first instance and is usually not an opportunity for an Appellant to raise fresh issues not raised at first instance, unless for example jurisdictional issues are involved, in which case it may be referred back to be dealt with at first instance. It is not conducive to the interests of justice for appeal hearings to be treated as a tribunal at first instance. It may however be open to the Appellant to lodge a fresh application which deals with matters not raised in the proceedings at first instance.
[28] For the reasons given, we order that permission to appeal is refused.
VICE PRESIDENT
Final written submissions:
Appellant, 25 October 2019
Respondent, 22 November 2019
Printed by authority of the Commonwealth Government Printer
<PR716480>
1 United Voice [2019] FWC 596 (Decision)
2 PR711750.
3 Email of Appellant (23 September 2019) and email of Respondent (25 September 2019).
4 Form F7 at clause 2; Appellant’s Submissions at [10].
5 Form F7 at [3.1].
6 Appellant’s Submissions at [17].
7 Ibid [19].
8 Respondent’s Submissions at [6].
9 Ibid [10].
10 Ibid.
11 Ibid.
12 Ibid [15].
13 Ibid.
14 Fair Work Act 2009 (Cth) s.604(2).
16 Ibid at [26] – [27].
17 Esso Australia Pty Ltd v AMWU & CEPU& AWU [2015] FWCFB 210 at [7].
18 Explanatory Memorandum, Fair Work Bill 2008 at [979].
19 Alcoa of Australia Limited v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1832 at [24].
20 [2013] FCAFC 148.
21 Application, at [2.2].
22 Ibid at [2.4].
23 Ibid, Attachment 1.
24 Application at [2.4.1].
25 Appellant’s Submissions at [15].
26 Decision at [7] – [8].
27 For example, The Australian Maritime Officers’ Union [2019] FWC 7913 at [3], Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Retail FM Pty Ltd T/A Retail FM [2016] FWC 9154 at [4]-[5], [13], The Australian Workers’ Union [2014] FWC 5454 at [3], Groote Eylandt Mining Company Pty Ltd T/A South32 GEMCO v Construction, Forestry, Mining and Energy Union [2016] FWCFB 2432 at [16].
28 Appellant Submissions at [16].