Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [2017] FWC 27 of Deputy President Sams at Sydney on 5 January 2017 in matter number C2016/5814

Introduction and background

[1] The Australian Rail, Tram and Bus Industry Union (RTBU) applied to the Fair Work Commission (Commission) for it to deal with a dispute (Application) involving Asciano Services Pty Ltd t/a Pacific National (Pacific National) under s.739 of the Fair Work Act 2009 (FW Act). The dispute related to a decision by Pacific National to remove planning unit positions located at Port Waratah and the Illawarra Bulk Terminal in NSW. Pacific National raised a jurisdictional objection to the Application. Deputy President Sams upheld the jurisdictional objection and dismissed the Application (Decision). 1 The RTBU has appealed that Decision.

[2] On 2 September 2016, Pacific National issued two notifications that it intended to proceed with significant change under clause A29.1(c) of the Pacific National Coal NSW Enterprise Agreement 2013 (Agreement). The first notification related to the removal of planning unit positions located at Port Waratah. The second notification related to the removal of planning unit positions located at the Illawarra Bulk Terminal. Approximately 25 support staff employees covered by the Agreement and located at Port Waratah were impacted by the first notification. Approximately eight support staff employees covered by the Agreement located at the Illawarra Bulk Terminal were impacted by the second notification.

[3] In September 2016, correspondence passed between the RTBU and Pacific National in relation to the proposed changes. On 26 September 2016, the RTBU filed the Application in the Commission. The form F10 Application filed by the RTBU nominated the RTBU as the “applicant”, but at least one of the annexures to the Application states that “the RTBU on behalf of its members are placing this matter in dispute as per clause A29.3(a).” The Application describes the dispute as being about, inter alia, alleged failures by Pacific National to:

● meet its redeployment obligations under clause A17 of the Agreement;

● consult under clause A29.1(e) of the Agreement; and

● advertise for voluntary redundancies and refusal to recognise employees as redundant.

[4] Subsequently, the RTBU narrowed the dispute by not pressing its allegations that Pacific National had failed to comply with its consultation obligations under clause A29 of the Enterprise Agreement.

[5] The Deputy President was unable to resolve the dispute during conciliation. Pacific National participated in the conciliation conferences notwithstanding its position that a valid dispute had not been notified by the RTBU to Pacific National and lodged in the Commission. After it became apparent that the dispute would not be resolved in conciliation, the RTBU sought a recommendation from the Commission pursuant to the dispute settlement clause in the Agreement. Pacific National then pressed for its jurisdictional objection to the Application to be determined. Directions were issued for submissions to be filed and served in relation to Pacific National’s jurisdictional objection. The Deputy President proceeded to determine the jurisdictional objection on the basis of the submissions filed by the parties, together with an agreed statement of facts.

[6] The Deputy President’s findings and conclusion in relation to Pacific National’s jurisdictional objection are set out in paragraph [35] of the Decision:

“It is not disputed that clA30.2(a) was not complied with and the ultimate dispute notification did not name any employee affected by the workplace change. Accordingly, this s739 application has not been properly made in accordance with the Act, pursuant to s587(1)(a). It follows that I am satisfied that Pacific National’s jurisdictional objection to this s739 application has been made out. That being so, I have no alternative but to dismiss the application. An order to that effect will accompany publication of this decision.”

The Agreement

[7] Clauses A29 and A30 of the Agreement facilitate the potential involvement by the Commission in different types of disputes. In particular, under clause A29.3(a) the Commission may be notified of a dispute with respect to a proposed change and under clause A30.2, of a dispute in relation to the application of the Agreement or other workplace change. Those clauses are in the following terms:

“A29 CONSULTATION AND CHANGE

A29.1 Consultation:

(a) The Parties are committed to pursue all opportunities to adopt the world's best practices through modern technology and continuous improvement to all aspects of Pacific National Coal, NSW's operations.

(b) Levels of manning, equipment and methods of operation may be varied from time to time by Pacific National Coal, NSW to reflect the need for safe work practices, improved technology and new types of machinery or systems, customer service needs or for any other reason.

(c) Pacific National Coal, NSW having made a definite decision that it intends to proceed with any significant change shall issue a notification, in writing, advising:

(i) The affected Employees, or their representatives and their union;

(ii) The nature of the change;

(iii) The reason for it;

(iv) The timing of it; and

(v) Any other relevant information.

(d) Pacific National Coal, NSW shall allow the Employee, their representative and the union, an opportunity to express their view or concerns. Pacific National Coal, NSW will allow Employees, their representative and their union to actively participate in the consultative process. That is, allow for the reasonable release and payment of Employees to attend meetings and access to entitlements as provided for in this Agreement.

(e) Pacific National Coal, NSW shall genuinely consult and consider any views or advice from the Employees, their representative and their union in relation to the proposed change and provide written reasons addressing concerns raised by Employees and/or Employee representatives.

(f) This consultative process must be completed within a period of 14 days from the date of notification by Pacific National Coal, NSW as set out in clause (c) above. subject to the provisions of (d) being complied with. Failure to comply with the provisions of (d) will delay and or extend the 14 day period accordingly.

(g) Should Pacific National Coal, NSW fail to provide the notification as required in clause (c) above Pacific National Coal, NSW shall not implement any of the proposed changes until such time that the proper notification of change has been provided and the consultation process set out in sub clause (d) has been complied with.

(h) Further, where Pacific National Coal, NSW has failed to engage in any consultation whatsoever with the affected Employees, their representative or their Union may issue Pacific National Coal, NSW, within 7 days of the non compliance, with a notice of dispute, in writing, setting out the reasons for the dispute in the form set out in Section G of this Agreement. Upon receiving such notice of dispute Pacific National Coal, NSW will not implement the change and/or cease the change should it have been already implemented.

(i) It is agreed between the Parties that after the above notification and consultation process has satisfactorily taken place, Pacific National Coal, NSW may implement change after a further fourteen (14) days.

A29.2 Significant Change

(a) For the purposes of this clause and without limiting the generality thereof, significant change includes changes in the composition, operation or size of the workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure, the alteration of hours of work, the need for retraining or transfer of Employees to other work or locations and the restructuring of jobs and significant changes to the Pacific National Coal, NSW Drug and Alcohol, Fatigue Management and Communications and Monitoring policies subject to clauses A40, A41 and A44.

A29.3 Right To Conciliation

(a) Notwithstanding the above, once the notification has been provided or consultation has commenced in accordance with this clause, a Party may notify FWC of a dispute in accordance with clause A30 with respect of the proposed change. In such circumstances, Clause A30.2(a) to A30.2(e) need not be followed.

A29.4 Right to Arbitration

(a) A Party shall have the right to request that FWC arbitrate a dispute arising under this clause in circumstance(s) where a Party has failed to follow the notification and or the consultation process outlined in clause A29.1(c).

(b) The employees with their representatives shall have a further right to arbitrate a dispute where Pacific National Coal, NSW have introduced the change and the provisions of clause A29.1(h) have been enacted.

A30 RESOLUTION OF DISPUTES

A30.1 Employees may be represented at any stage of the resolution of disputes process by a representative of their choosing which representatives may include a union.

A30.2 Where a dispute or grievance arises between Pacific National Coal, NSW and its employees in relation to the application of this Agreement or other workplace change, the following will occur:

(a) Where a person or their representative wish to lodge a dispute or grievance it must be done so in writing in the form as set out in section G of this Agreement.

(b) Where the person or their representative who lodges the dispute / grievance elects to commence the dispute settling process with this step, the Employee(s) who is (are) affected by the decision will discuss the matter with their Local Superintendent or Area Manager. This may be appropriate, even where the local Superintendent or Area Manager was not the Pacific National Coal, NSW manager who made the decision which is subject of the dispute notice.

(c) The issues raised will be considered and the Employee who lodged the notice will be given a response within 24 hours. This response will be in writing.

(d) If the dispute/grievance remains unresolved, it will be referred to the Operations or Functional Manager and if the Employee(s) affected so request, a union representative for discussion.

(e) The discussions must be concluded within 48 hours.

(f) If the dispute/grievance remains unresolved, it may be referred to the General Manager Coal Operations NSW and if the Employee(s) affected so request, a representative which may include a union. Where an Employee chooses a union to represent them, the relevant State Secretary or National Secretary may choose to be involved in these discussions. These discussions must be completed within 48 hours.

(g) If the dispute/grievance remains unresolved, a “cooling off period” of 48 hours (excluding weekends and public holidays) will occur at this stage of the process. During this period, the Parties may continue to have discussions at whichever level they regard as most likely to assist in resolving the dispute/grievance. The parties may agree, at this point to utilise mediation to resolve the dispute.

(h) During, or at the conclusion of the cooling off period, a Party may decide to refer the matter to a mutually acceptable independent mediator or the FWA for the purpose of conciliation of the dispute. The conciliation must occur as soon as reasonably practicable.

(i) Where a dispute/grievance is escalated to the point of either an independent mediator or the FWA in conciliation, the Parties acknowledge the significance of this point being reached. Therefore, any recommendation made by the independent mediator or FWA in an attempt to assist the Parties to resolve the dispute/grievance will be treated as highly influential.

(j) Where both parties agree, they may empower the mediator or member of the FWA to resolve the matter by arbitration.

A30.3 Any of the steps in the process may be removed where the Parties agree. Likewise, the Parties may agree to extend the timeframes within which each of the steps are to be completed.

A30.4 At all times during this process work shall continue in the matter it was being performed immediately before the dispute or grievance.”

Permission to appeal

[8] Because the Agreement does not confer on the parties to it a right to appeal a decision made pursuant to clause A29 or A30, the appeal provisions in s.604 of the FW Act apply, including the requirement for permission to appeal. 2

[9] Section 604(2) of the FW Act provides that, without limiting when the Commission may grant permission to appeal, it must grant permission if it is satisfied that it is in the public interest to do so.

[10] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3  In GlaxoSmithKline Australia Pty Ltd v Makin4 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

[11] 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 of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.7

[12] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 8

Consideration

[13] The Deputy President upheld Pacific National’s jurisdictional objection and dismissed the Application for two reasons: 9

(a) First, clause A30.2(a) was not complied with. That is, Pacific National did not receive from any person, or their representative, a notification of grievance or dispute form (as set out in section F of the Agreement); and

(b) Secondly, the Application did not name any employee affected by the workplace change.

[14] As to the first reason, there is no dispute between the parties that, at the time the Application was filed in the Commission, the dispute related, in part, to a proposed change under clause A29.1 of the Agreement. By virtue of the final sentence in clause A29.3(a), steps (a) to (e) in clause A30.2 did not need to be followed. It follows, as counsel for Pacific National correctly accepted, that there was no obligation on any person, or their representative, to provide Pacific National with a notification of grievance or dispute form (as set out in section F of the Agreement). Accordingly, we are satisfied that the Deputy President erred by relying on the fact that clause A30.2(a) was not complied with as part of his reasoning for concluding (at [35]) that the Application was “not properly made in accordance with the Act.”

[15] As to the second reason, in order for the Commission to have jurisdiction to deal with a dispute pursuant to s.739 of the FW Act, the dispute, properly characterised, must fall within the scope of disputes that the applicable enterprise agreement “requires or allows” the Commission to deal with 10 and the parties must comply with any mandatory pre-filing steps set out in the enterprise agreement. However, there is no requirement in the FW Act for every s.739 application filed in the Commission to identify by name each employee who was a party to the dispute at the time the application was filed. In some circumstances the employee parties to the dispute may be identified with sufficient particularity by reference to a class of employees.11 Further, in the event that there is some uncertainty about who belongs to the class of employees or further information is required to enable the employer, as a matter of natural justice, to understand the case it has to meet in dealing with the dispute, including the names and circumstances of employee parties to the dispute, then directions can be sought from, and made by the member of the Commission dealing with the dispute. In the event that a party to a dispute is directed to provide such additional information and refuses to do so, it may provide a foundation for the Commission to exercise its discretion to dismiss the application, decline to grant any relief, or take some other course.

[16] We consider that dealing with disputes in the manner set out in the previous paragraph is consistent with the duty imposed on the Commission to perform its functions and exercise its powers in a manner that is, amongst other things, “quick, informal and avoids unnecessary technicalities.” 12 In our view, it would be contrary to the obligations imposed on the Commission pursuant to s.577 of the FW Act for s.739 applications to be automatically dismissed on the basis that every employee party to the dispute was not identified by name in the application.

[17] In the present case, we accept that the parties to the dispute the subject of the Application were Pacific National and members of the RTBU who were impacted by the removal of planning unit positions located at Port Waratah or the Illawarra Bulk Terminal. Notwithstanding some of the submissions put below and the fact that the RTBU nominated itself as the “applicant” in the Application, the RTBU now accepts, correctly in our view, that it was not a party to the dispute before the Deputy President; the RTBU notified the Commission of the dispute in its capacity as the representative of its members. It follows that the requirement under s.739(6) of the FW Act for there to be an “application by a party to the dispute” was satisfied in this case. Any misdescription of the RTBU’s status in the application was, we consider, something amenable to correction, amendment or waiver under s.586 of the FW Act and did not operate to deny the Commission jurisdiction to deal with the application.

[18] The RTBU did not identify by name the employee parties to the dispute in the Application. The dispute settlement procedures set out in clauses A29 and A30 of the Agreement do not require such persons to be named in the Application, nor, for the reasons set out above, does the FW Act. During conciliation of the dispute, the RTBU provided Pacific National with the names of its members who were, at that time, seeking further assistance with redeployment, training, and/or the recognition of prior learning. The fact that Pacific National was not provided with the names of the employee parties to the dispute at, or prior to, the time the Application was filed in the Commission does not, in our view, mean that the Commission did not have jurisdiction to deal with a dispute which, on any view of it, fell within the scope of disputes that the Agreement “requires or allows” the Commission to deal with.

[19] For the reasons set out above, we are satisfied that the Deputy President erred by relying on the fact that the ultimate dispute notification did not name any employee affected by the workplace change as part of his reasoning for concluding (at [35]) that the Application was “not properly made in accordance with the Act.”

Conclusion and orders

[20] Both parties accept that the dispute the subject of the Application is at an end because the workplace change that gave rise to the dispute has been implemented. Notwithstanding that fact, we are satisfied that the appeal has utility. The Agreement continues to operate and the Commission is likely to be requested to deal with future disputes between Pacific National and its employees, including as a result of s.739 applications filed by the RTBU on behalf of its members. Further, other enterprise agreements covering Pacific National and the RTBU contain similar dispute settlement clauses. 13

[21] In light of the appealable errors we have identified above and the public interest in ensuring clarity in relation to the jurisdiction of the Commission to deal with disputes brought by employee organisations on behalf of members, we grant permission to appeal and quash the Decision. However, given both parties accept that the dispute the subject of the Application is at an end, there is no point remitting the matter to the Deputy President or any other member of the Commission. The Application is therefore dismissed.

[22] We therefore order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The Decision ([2017] FWC 27) is quashed.

(4) The Application (C2016/5814) is dismissed.

VICE PRESIDENT

Appearances:

M. Diamond for the Australian Rail, Tram and Bus Industry Union – New South Wales Branch

P. Almond for Asciano Services Pty Ltd

Y. Shariff for Asciano Services Pty Ltd

Hearing details:

2017.

Sydney:

24 March.

 1   [2017] FWC 27

 2   DP World Brisbane Pty Ltd v The Maritime Union of Australia [2013] FWCFB 8557; 231 IR 180 at [46]-[50]; DL Employment Pty Ltd v AMWU [2014] FWCFB 7946 at [38]

 3   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, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46]

 4   [2010] FWAFB 5343 ; (2010) 197 IR 266

 5   Ibid at [27]

 6   Wan v AIRC [2001] FCA 1803 at [30]

 7   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 8   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 9   Decision at [35], read together with [24]-[34]

 10   FW Act, s.739(1)

 11   Reddam House Limited and Crawford Education Pty Limited v Independent Education Union of Australia [2016] FWCFB 12 at [15]

 12   FW Act s.577(b)

 13   See, for example, Pacific National Bulk Rail Enterprise Agreement 2013

Printed by authority of the Commonwealth Government Printer

<Price code C, PR591302>