[2015] FWCFB 3503

The attached document replaces the document previously issued with the above code on 5 June 2015.

The document has been edited to correct the print number identified in the summary.

Catherine Taylor

Associate to Vice President Hatcher

Dated 5 June 2015

Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against a decision in transcript on 27 March 2015 and Order [PR562937] issued on 10 April 2015 of Commissioner Blair at Melbourne in matter numbers U2014/13427, U2014/13428, U2014/13484, U2014/14539, U2014/14542, U2014/14548, U2014/14550.

[1] Jason Eacott, Brendan Dudek, Deane King, Lawrence Brooks, Patrick Zaffina, Darryl Ivory and Noel Fenn have applied for permission to appeal a decision of Commissioner Blair issued on transcript on 27 March 2015 and subsequently published on 10 April 2015 1 (Decision). That Decision concerned applications for unfair dismissal remedies that had been lodged by each of the appellants in respect of their dismissals by Transfield Worley Power Services Pty Ltd (Transfield). Transfield had applied for dismissal of the applications on the grounds that the termination of each of the appellants had been a case of genuine redundancy (as defined in s.389 of the Fair Work Act 2009 (FW Act)) and therefore that the prerequisite for an unfair dismissal in s.385(d) of the FW Act could not be satisfied. The Commissioner upheld what he described as Transfield’s “jurisdictional objection” in this respect and dismissed the applications. The appellants contend that the Decision was attended by appealable error and should be quashed.

[2] Section 389 of the FW Act provides:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[3] The only part of s.389 which was in issue before the Commissioner was whether that part of the definition of “genuine redundancy” in s.389(2)(a) was satisfied. The appellants contended at first instance that it would have been reasonable for them to have been redeployed by Transfield to perform work which was being performed by casual employees of Transfield. The Commissioner rejected this contention, concluding as follows:

“[8] The Commission would say that on the evidence of Mr Crawshaw, on behalf of the Respondent, there have been no new fulltime workers employed and the very nature of casual work is that it cannot be guaranteed. Casual work cannot be guaranteed and, by its very nature, it is sporadic. The evidence of each of the Applicants that has given evidence, indicates that there is no guarantee of casual work.

[9] Some of the evidence has said that they would be financially better off if they had have been employed as casuals and given regular work, but there is no regular work as casuals. One only can be better off financially if one does have regular work at a high casual rate, and that is not guaranteed. The Respondent has indicated that they are not prepared to prioritise any of the seven that have been made redundant in terms of ongoing casual work. Some have been given casual work but others have not. Indeed, the submissions of the respondent at paragraph 13:

Indeed, a regular or short-term casual employment, or even a casual employment contract at all does not on any reasonable view equate to reasonable redeployment to a position so as to avoid termination of employment.  Certainly not alternative casual work that would be considered reasonable alternative employment, so as to avoid termination of employment and the subsequent payments made for reason of redundancy.

[10] The Commission is not satisfied that offering casual work would have met the requirements of 389(2)(a):

it would be reasonable in all the circumstances for the person to be redeployed as a casual within the enterprise.

[11] The Applicants do not pass that first hurdle. Even taking into account the events leading up to 3 October, the employees became conflicted by an offer of the Respondent. The Union’s evidence is that the employees became conflicted because the offer from the solicitors by way of correspondence on behalf of Respondent was that they would be offered casual work but it meant that other casuals would be terminated. The Applicants became conflicted because other casuals are their colleagues. They are fellow members of their union and the Applicants didn’t want to do that.

[12] The Union’s evidence as well is that the Applicants became upset with the Respondent and rejected the offer.

[13] Even if casual employment was reasonable, it was rejected by the Applicants.”

[4] The appellants submitted that the ratio decidendi of the Decision (contained in paragraph [10]) was the conclusion that, as a matter of general principle, redeployment to casual employment did not arise for consideration under s.389(2)(a). On the basis of this proposition the appellants contended that it was in the public interest for permission to appeal be granted so that this conclusion could be given authoritative consideration. The question “at the heart of this appeal” was said by the appellants to be: If an employer fails to offer a redundant employee a casual position as a redeployment option, will the employee’s termination still be a case of genuine redundancy under the FW Act? They contended that the answer to this question was in the negative, and that in circumstances where the evidence demonstrated that Transfield, at the time of the dismissal, engaged 70 casuals at the relevant worksite and maintained a casual pool of 600 of whom 250 were active, there could not have been avoided a finding that the applicants could have been redeployed to casual work.

[5] Transfield submitted that the Decision did not contain any pronouncement of principle or any general interpretation of s.389(2)(a). The matter was determined on the basis of its particular facts and circumstances. The conclusion that redeployment would not have been reasonable was a discretionary one in relation to which no error of the type identified in House v The King 2 had been identified. For those reasons, permission to appeal should, Transfield submitted, be refused.

[6] This appeal is one to which s.400(1) of the FW Act applies. Section 400(1) provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

[7] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... 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.” 5

[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 6 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.7

[9] The appellants’ application for permission to appeal is dependent upon their characterisation of the Decision as involving a statement of principle that redeployment to casual employment may never be considered for the purposes of s.389(2)(a). We disagree with that characterisation of the Decision. We do not consider that paragraph [10] of the Decision, or any other part of the Decision, can reasonably be read as stating this principle. It is clear, reading the Decision as a whole, that the Commissioner did in fact consider whether redeployment to casual work would have been reasonable, and made findings of fact concerning the nature of the alternative casual work that was available and the circumstances which led to the appellants not being redeployed to perform that work. The appellants’ appeal did not involve any challenge to those findings of fact.

[10] The Decision is to be understood as rejecting the appellants’ case that redeployment of the appellants to casual work would have been reasonable in all the circumstances for the reasons that such casual work was sporadic in nature and could not be guaranteed and that the appellants had rejected Transfield’s offer of casual work to them because it would lead to fellow union members in casual employment being displaced. We consider that the Commissioner’s conclusion in that respect was reasonably open to him on the basis of the findings of fact he had made. It would be difficult in our view to characterise a transfer from permanent full-time work to sporadic and non-guaranteed casual work as a “redeployment” at all for the purposes of s.389(2) let alone one that was “reasonable in all the circumstances”. Although the refusal of Transfield’s offer of casual work occurred shortly after the dismissals took effect, we consider that it could fairly be inferred that the same refusal would have been forthcoming for the same reasons had the casual work been offered as a potential redeployment opportunity prior to the dismissals. That inference tells against the proposition that the putative redeployment to casual work would have been reasonable in all the circumstances.

[11] The appeal does not therefore raise any issue of importance or general application which would attract the public interest. We do not consider that the Decision otherwise manifests any injustice or was attended by any appealable error. Having considered all of the matters raised by the appellants, we are not satisfied for the purposes of s.400(1) that it would be in the public interest to grant permission to appeal.

[12] Permission to appeal is therefore refused.

VICE PRESIDENT

Appearances:

B. Terzic Australian Manufacturing Workers’ Union for the Appellants.

P. Wheelahan counsel for the Respondent.

Hearing details:

2015.

Sydney:

21 May.

 1   PR562937

 2   (1936) 55 CLR 499

 3   (2011) 192 FCR 78 at [43]

 4   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]

 5   [2010] FWAFB 5343 at [27], 197 IR 266

 6   Wan v AIRC (2001) 116 FCR 481 at [30]

 7   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

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