[2014] FWCFB 4738 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT WATSON |
MELBOURNE, 16 JULY 2014 |
Appeal against decision [[2014] FWC 2401] of Commissioner Lewin at Melbourne on 30 April 2014 in matter number AM2012/200 – permission to appeal granted, appeal upheld – decision set aside in part in relation to dress requirements provision.
[1] This is an appeal, pursuant to s.604 of the Fair Work Act 2009 (the Act) by the Shop, Distributive and Allied Employees Association (the SDA) against a decision of Commissioner Lewin on 30 April 2014, 1 made as part of the 2012 review of modern awards2 in relation to variations sought to the Hair and Beauty Industry Award 20103 (the Award).
[2] The matter was listed for hearing on 16 July 2014, but the hearing date was vacated in favour of the determination of the appeal on the papers, following the opportunity for parties to the appeal to object to the determination of the appeal on the papers. No objection was received to that course.
[3] The scope of the SDA’s appeal is narrow. It concerns that part of Commissioner Lewin’s decision in which he refused that part of the SDA’s application 4 which sought to add to the Award an additional clause—Dress Requirements. The Commissioner dealt with that proposed variation at paragraphs 48–61. He found that whilst the application had merit, there was no jurisdiction to make the variation in that any variation of a modern award must comply with the requirements of the Act as set out in Subdivision A of Division 3 of Part 2–3 and the variation did not because it proposed a term which was not a term that can be included in a modern award (s.139 of the Act) or an incidental or machinery term (s.142 of the Act).
[4] The SDA advanced a number of grounds on appeal, including the contention that Commissioner Lewin denied it procedural fairness in that he failed to provide the SDA with an opportunity to make submissions on the issue, determining the matter on the basis of written submissions filed with the application. The SDA sought that the part of the decision dealing with its application to insert a Dress Requirements term—paragraphs 48–61—be set aside and the matter be referred to the 4 yearly review of modern awards 5 for consideration and determination.
[5] No other submissions were received in the appeal.
[6] It is well established that the members of the Fair Work Commission are under a duty to observe the rules of natural justice, 6 which include the provision of a reasonable opportunity to present a case.7 The written submissions which attended the SDA’s application were restricted to the questions of merit and the statutory criteria for a variation within the 2012 Review. The jurisdictional issue which led the Commissioner to refuse the SDA’s application did not arise in the written submissions upon which the Commissioner determined the SDA’s application. The SDA was not made aware that the basis for rejecting its application was a live issue and was not afforded an opportunity to address it. The Commissioner was obliged to give the SDA an opportunity to address the jurisdictional issue. In not doing so, Commissioner Lewin failed to afford the SDA of natural justice.
[7] We grant permission to appeal, uphold the appeal and set aside paragraphs 48–61 of the decision of Commissioner Lewin.
[8] We will issue an order setting aside paragraphs 48–61 of the decision. 8
[9] The SDA sought that its application to insert a Dress Requirements provision into the Award be “referred” to the 4 yearly review of modern awards for consideration and determination. The Award forms part of Group 4 in the four yearly review. 9 The review will follow the form of the original Part 10A award modernisation process, in that parties will be required to make submissions to a Full Bench on an award by award basis, rather than by application.10 The SDA should raise and make submissions about its proposed Dress Requirements provision in that process and, in doing so, address the jurisdictional issue raised by Commissioner Lewin in his decision.
SENIOR DEPUTY PRESIDENT
2 Item 6 of Part 2 of Schedule 5 to Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
4 In matter AM2012/200.
5 Section 156 of the Fair Work Act 2009.
6 R v The Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Angliss Group (1969) 122 CLR 546 at 552.
7 Kioa and Others v West and Another (1985) 159 CLR 550 at 614 per Brennan J.
9 4 yearly review of modern awards, Guide to Award Stage, 16 June 2014, at p. 15,
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/award-stage
10 Issues Paper: 24 January 2014, at para 23,
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