Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [[2017] FWC 2260] of Commissioner Ryan at Melbourne on 5 May 2017 in matter number C2017/2066.

Introduction

[1] BlueScope Steel Limited (BlueScope) has lodged an appeal, for which permission to appeal is required, against a decision of Commissioner Ryan issued on 5 May 2017 1 (Decision). The Decision was made in relation to an application by BlueScope pursuant to s.739 of the Fair Work Act 2009 (FW Act) for the Commission to resolve a dispute pursuant to the dispute resolution procedure in cl.11 of the BlueScope Steel Western Port Enterprise Agreement 2014-2017 (Agreement). The dispute concerned whether BlueScope was entitled to proceed with a proposal to use employees of an external labour hire contractor to perform packing line duties to meet a short-term spike in orders. The Australian Workers’ Union (AWU), which represented employees of BlueScope covered by the Agreement, contended that, under cl.13 of the Agreement, BlueScope was not permitted to proceed with this proposal without having consulted with it and obtained its agreement. It did not agree to the implementation of the proposal. BlueScope’s position was that the AWU’s consent was not required under cl.13 of the Agreement. The Decision primarily concerned this contest about the proper interpretation of cl.13.

[2] Clause 13 of the Agreement relevantly provides:

“13. ALTERNATIVE EMPLOYMENT ARRANGEMENTS

13.1 General

13.1.1 Permanent full-time employment will continue to be the standard employment arrangement at Western Port. However, it is recognised that there may be situations where alternative arrangements are more appropriate.

13.1.2 All other things being equal, the Company will give preference of employment to residents of the local region.

13.1.3 Contractors may be used by the Company to cover such situations. Where the Company requires part-time or casual employees, the Company will involve the Union in the decision, prior to any part time or casual arrangements being implemented. In the event that either part time or casual employment is required by the Company then the Company will only engage in such arrangements after consultation and agreement is reached with the Union. Such agreement will not be unreasonably withheld.

13.2 Fixed Term Employment

13.2.1 The intent of this clause is to better enable the Company to meet labour requirements in a demand based business. It is not the intent of this clause to casualise or de-skill the workforce.

13.2.2 Subject to sub-clause 13.2.4, the parties agree that the Company may engage fixed term employees automatically (that is, without Union consultation or agreement) for any period or periods of between 4 weeks and 12 months in any of the following circumstances: 

(i) Annual or long service leave coverage; 

(ii) Maternity/Paternity leave; 

(iii) Absences due to illness/injury; and 

(iv) Demand for labour that is not likely to result in permanent employment.

The Company will notify AWU Site Delegate(s) at the time of appointment of the fixed term appointments on site.

13.2.3 Subject to sub-clause 13.2.4, any consecutive term beyond 12 months will be discussed and agreed with the Union. Agreement will not be unreasonably withheld.
. . .
13.2.5 Wherever possible, a fixed term employee will commence work prior to the permanent employee commencing their period of absence (as above) to facilitate induction and training.

13.2.6 In the event of a fixed term employee obtaining a permanent employment opportunity with the Company at the conclusion of the fixed term period, the Company will recognise the fixed term employee's continuity of service for the continuous period immediately prior to the permanent engagement.

13.3 Part-Time Employment

13.3.1 Employees may be engaged by the week to work on a part-time basis for a consistent number of hours which, having regard to the various ways of arranging ordinary hours, will average less than 38 hours per week.

13.3.2 Rate of Pay 

Part-time employees will be paid, per hour, one thirty-eighth of the weekly rate prescribed by this Agreement, for the Level at which the employee is accredited.

13.3.3 Leave Entitlement 

Part-Time employees are entitled to annual leave, long service leave and personal/carer's leave on a proportionate basis.

13.3.4 Overtime 

A part-time employee who works in excess of his or her contracted hours will be paid as overtime in accordance with Clause 28 (Overtime).

13.3.5 In the event that a department wishes to utilise part-time employment, prior to these arrangements being implemented the Company will consult with the Union as outlined in 13.1 above. The Company will provide reasons as to why part-time employment is more appropriate than full-time employment or other arrangements.

13.3.6 The Company will consider, subject to business requirements, employee initiated requests to work part-time, e.g. due to family responsibilities.

13.3.7 Where a part-time employee's normal rostered hours fall on a public holiday and work is not performed by the employee, such employee will not lose pay for the day.

13.3.8 Where a part-time employee works on a public holiday, such employee will be paid in accordance with clause 39.3 (Payment for Time Worked on a Public Holiday) of this Agreement.

13.4 Casual Employment

13.4.1 In the event that a department wishes to utilise casual employment, prior to these arrangements being implemented the Company will consult with the Union in accordance with 13.1 (Alternative Employment Arrangement) above. The Company will provide reasons as to why casual employment is more appropriate than full-time employment or other arrangements.

13.4.2 Casual employees will be paid a casual loading of 25%.”

The Decision

[3] In the proceedings below, BlueScope submitted that the first sentence of clause 13.1.3 conferred upon it an unrestricted right to use “contractors” (that is, for relevant purposes, labour hire employees). The Commissioner rejected this submission in the following terms:

“[18] The submission of BlueScope that there are no restrictions on the engagement of contractors is unsound.”

[4] However the Commissioner also rejected the AWU’s contention that the requirement for consultation and agreement in cl.13.1.3 applied to the use by BlueScope of labour hire contractors. It is not necessary to examine the Commissioner’s reasoning in that respect because there is no challenge to his conclusion in the appeal by either party. The Commissioner then went on to reason as follows:

“[21] Whilst it is clear that clause 13.1.3 does not place any restrictions on the engagement of contractors, the first sentence of clause 13.1.3 which permits the use of contractors must be understood in the context of the whole of clause 13.

[22] It is also important to note that the absence of any mention in clause 13.1.3 of fixed term employment is unsurprising given the very detailed provisions in clause 13.2.

[23] Significantly, the use of other than permanent full time employees is conditional upon the appropriateness of the use of contractors, fixed term employees, part-time employees or casual employees. Some guidance is given within clause 13 as to the appropriateness of using some forms of labour but no guidance is given as to the appropriateness of using other forms of labour.

[24] Clause 13.2 gives real substance to when it is appropriate to use fixed term employment. Clause 13.3 provides no guidance as to when it is appropriate to use part time employment. However, clause 13.1.3 requires that, before part time employment can be used as an alternative to full time employment, BlueScope must consult with the AWU and the AWU has to agree with the use of part time employment, although the AWU cannot unreasonably withhold its agreement. Clause 13.4 requires that BlueScope provide reasons as to why it is appropriate to use casual employment and requires that BlueScope consult with the AWU as required under clause 13.1.3. Apart from the permission given to BlueScope in clause 13.1.3 to use contractors there is nothing in clause 13 which specifically deals with processes to be undertaken by BlueScope when it wishes to use contractors as an alternative to using full time employment.

[25] When read in the context of the whole of clause 13 it is reasonable to conclude that BlueScope is permitted to use contractors rather than full time permanent employees but only if the use of contractors is appropriate. Whether the use of contractors in any given situation is an appropriate alternative to using full time permanent employees will, in the case of a dispute as to the appropriateness of using contractors, depend upon a consideration as to the appropriateness of using full time permanent employment or the appropriateness of using fixed term employment. The necessity to look at the appropriateness of using fixed term employment is because clause 13.2 makes it very clear when it is appropriate to use fixed term employment.

[26] The foregoing analysis makes clear that the permission granted by the first sentence of clause 13.1.3 to BlueScope to use contractors is not conditional upon both BlueScope consulting with the AWU and the AWU agreeing to the use of contractors. However, the use of contractors as an alternative to the use of full time employees is subject to a test of appropriateness and where a dispute arises as to the appropriateness of the use of contractors as an alternative to the use of full time employment the disputes resolution procedures of the Agreement apply.”

[5] The Commissioner then went on to consider the “appropriateness” of BlueScope’s proposed use of labour hire contractors, and noted the parties’ competing contentions in this respect. The Commissioner then said:

“[29] It is clear from the above that BlueScope has considered the appropriateness of the use of contractors as an alternative to the use of full time employees. However, it is also clear that BlueScope has not considered the appropriateness of the use of fixed term employment as an alternative to the use of either full time employment or the use of contractors. It is also clear that the AWU has only responded to the use of contractors as an alternative to the use of existing full time permanent employees and not to any other alternative.

[30] It is clear from the specific language of clause 13.2.2 that one of the specific appropriate uses of fixed term employment was in circumstances where there was a demand for labour that would not lead to permanent employment. Relevantly clause 13.2.2 provides as follows:

“the parties agree that the Company may engage fixed term employees automatically (that is, without Union consultation or agreement) for any period or periods of between 4 weeks and 12 months in any of the following circumstances: 

(iv) Demand for labour that is not likely to result in permanent employment.”

[31] The situation described in the present matter by BlueScope as giving rise to the need to labour other than permanent full time employees is exactly one of the circumstances mentioned as constituting a circumstance in which the use of fixed term employment would both be an appropriate alternative and an alternative that can be implemented by BlueScope “without Union consultation or agreement”.

[32] The language and structure of 13 treats the use of contractors, fixed term employment or part time employment as competing alternatives to full time permanent employment and without preferring one alternative over the other. However, any consideration of the appropriateness of using contractors as the alternative to permanent full time employment must take into account that the Agreement has specifically identified fixed term employment as an appropriate alternative to full time permanent employment in a situation where there is a demand for labour that is not likely to result in permanent employment. That is exactly the situation outlined by BlueScope as giving rise to a need to use an alternative to full time permanent employment.

[33] Nothing has been put by BlueScope either in its application or in its written submissions which considers the appropriateness of the alternatives of contractors vis a vis fixed term employees as an alternative to using full time permanent employees.

[34] In all of the circumstances of the matter the Commission could not be satisfied that the use of contractors is an appropriate alternative arrangement as envisaged by clause 13.1.1.

[35] The issue in dispute remains unresolved and it is appropriate that the Commission give the parties an opportunity to make further submissions having regard to the contents of this interim decision.”

Submissions

[6] BlueScope submitted that the Decision was in error on three alternative bases:

(1) There was no restriction in cl.13 upon the use of contractors by BlueScope. The first sentence of clause 13.1 is merely aspirational. The second sentence of cl.13.1 is also either merely aspirational or to be read as requiring the appropriateness of the use of other than permanent full-time employees to be assessed subjectively from BlueScope’s perspective in the exercise of its managerial prerogative rather than objectively. The Commissioner erred in paragraph [18] of the Decision in rejecting BlueScope’s submission to this effect.

(2) To the extent that, contrary to the first argument, clause 13 is to be interpreted as imposing a restriction on BlueScope’s capacity to use contractors, it was invalid and of no effect. Section 253(1)(a) of the FW Act provides that a term of an enterprise agreement has no effect to the extent that it is not a term about a “permitted matter”. Section 172(1) defines what are “permitted matters” that may be dealt with in an enterprise agreement and, relevantly, s.172(1)(a) requires that such matters pertain to the relationship of the employer and employees covered by the agreement. It is well established, in particular in Wesfarmers Premier Coal v AMWU(No 2) 2 and Airport Fuel Services Pty Ltd v TWU3, that a prohibition or restriction on the use of contractors did not pertain to the relationship of employer and employee. The Commissioner erred by treating cl.13 as if it contained an operative restriction on BlueScope’s use of contractors.

(3) Additionally or alternatively, the Commissioner erred in his construction of cl.13.1.1 in two respects:

(a) Contrary to paragraphs [25] and [26] of the Decision, clause 13.1.1 does not require that the use of contractors be subject to an objective and absolute test of appropriateness; rather the use of contractors only needs to be “more appropriate” than the use of full-time employees.

(b) The appropriateness of the use of contractors was not to be considered or tested against the appropriateness of the use of any of the other specified alternatives to the use of full-time employees - in particular, fixed-term employees - contrary to the approach taken by the Commissioner in paragraphs [23], [25] and [32] of the Decision.

[7] BlueScope submitted that permission to appeal should be granted because the Decision was wrong and caused it a substantial injustice, and that the appeal should be upheld. In the event that either of its first two arguments was accepted, the Full Bench should determine the dispute on the basis that BlueScope was entitled to engage and use contractors as it saw fit. If the third argument was upheld, the Full Bench should determine whether the use of contractors was more appropriate than the use of permanent full-time employees on the papers. The work requirement which was required to be met was a surge in demand lasting about eight weeks. It would be pointless to engage new permanent full-time employees for this period, and restrictions on the use of overtime and the penalty rates associated with overtime meant that existing full-time employees could not be used to meet the surge. That meant that the use of contractors was clearly more appropriate.

[8] The AWU submissions in respect of each appeal ground were as follows:

(1) The first sentence of cl.13.1.3 permitted the use of contractors “to cover such situations”. The “situations” referred to were those dealt with in clause 13.1.1, being “situations where alternative arrangements are more appropriate”. The requirement for permanent full-time employment to be the standard was not merely aspirational, but the first of two restrictions imposed on BlueScope by cl.13.1.1. The second was that alternative arrangements could only be used where they were more appropriate than permanent full-time employment. The conclusion in paragraph [18] of the Decision was therefore correct.

(2) The restrictions on the use of contractors identified were permitted matters because they had a sufficient relationship to employees’ job security. The proposed provisions held not be permitted matters in Wesfarmers Premier Coal v AMWU (No2) and Airport Fuel Services Pty Ltd v TWU were of an entirely different nature, making those decisions distinguishable.

(3) The Commissioner did not adopt an absolute test of appropriateness in relation to the use of contractors; properly read, paragraph [25] of the Decision made it clear that the Commissioner considered that the test was whether the use of contractors was an appropriate alternative to the use of permanent full-time employees. Further, in applying that test, the Commissioner correctly identified that it was relevant to take into account the appropriateness of using other alternative arrangements identified in cl.13.

[9] The AWU submitted that the Decision was not attended by sufficient doubt such as to warrant the grant of permission to appeal; alternatively the appeal should be dismissed because no appealable error had been demonstrated.

Consideration

[10] The proper meaning of cl.13 of the Agreement is to be ascertained from the language used understood in the light of its industrial context and purpose. 4 There is little that can be gleaned from the context of the provisions of the Agreement outside of clause 13 that provides assistance in the construction of cl.13 beyond the fact that cl.12.4 evinces a policy of priority being given to the internal appointment of permanent full-time employees to positions which become vacant. Clause 12.4 provides:

“12.4 Permanent full time employees who apply for a newly advertised position as a Process Operator covered by the scope of this Agreement will be given preference for the position ahead of external applicants and fixed term employees, provided that the permanent full time employee possesses the requisite skills and qualifications determined by the Company as necessary to perform the requirements of the newly advertised role.”

[11] Neither party referred to any contextual matter external to the Agreement as an aid to the construction of cl.13. It is necessary therefore to turn directly to the text of cl.13.

[12] The heading of cl.13 identifies the subject matter of the provision as being “Alternative Employment Arrangements”. That heading begs the question as to what such arrangements are an alternative to. The answer is supplied by the first sentence to cl. 13.1.1, which establishes permanent full-time employment as the standard employment arrangement at the workplace. Thus the employment arrangements provided for in cl.13 are alternatives to permanent full-time employment. The clause as a whole can be characterised generally as having the purpose of identifying what those alternatives are, and the circumstances and conditions of their use.

[13] We do not accept BlueScope’s submission that the first sentence of cl.13.1.1 is to be read as being aspirational only rather than imposing any form of legal obligation. The statutory context in which enterprise agreements are made tends to suggest an intention that such agreements establish legal obligations, as explained in the judgment of White J in the Federal Court Full Court decision in National Tertiary Education Union v La Trobe University 5:

“[108] Although it may be a statement of the obvious, it is appropriate to keep in mind that the document which the Court is asked to construe is an enterprise agreement made pursuant to the regime in Pt 24 of the Fair Work Act 2009(Cth) (the FW Act). It is in the very nature of these agreements that they are intended to establish binding obligations. The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of cl 74.”

[14] White J went on in his judgment to acknowledge that an enterprise agreement may include matters “which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements” 6, and referred in this respect to the Federal Court decision in Reeves v MaxiTRANS Australia Pty Ltd.7 In that matter the Court (Ryan J) said:

“[19] It is to be borne in mind that an industrial agreement is the product of negotiation and often of compromise on each side. Not every provision in such a document is to be taken as intended to impose an enforceable obligation on one party or another so as to expose that party to the imposition of a penalty in the event of non-compliance with the provision. Some provisions may be characterised as “hortatory” or merely reflective of a desirable policy or end which the parties have agreed to implement or attempt to achieve but without attracting penal consequences if the efforts of either party towards that end are later seen to be lacking in some respect. A helpful analogy is afforded by Ventana Pty Ltd v Federal Airports Corp and Fairways Group Pty Ltd and Fairways Leisure Market Pty Ltd [1997] FCA 538 (unreported, Federal Court of Australia, 20 June 1997). That case concerned a provision of the Federal Airports Corporation Act 1986 (Cth), which required that a statutory body “endeavour to perform its functions” in a certain manner. Those words, I considered;

... embody no more than an exhortation as to what the [statutory body] should try to achieve as far as circumstances, and what can obviously be the conflicting demands of some of its various functions and powers, permit. Hortatory words of that kind, I consider, are inapt to import an enforceable obligation.”

[15] The use of “the language of obligation” will favour the conclusion that a provision in an enterprise agreement is intended to establish a legal obligation rather than being merely aspirational in nature. 8 The first sentence of cl.13.1.1 uses such language (“will continue”), and so on its ordinary meaning is to be read as imposing an obligation. Further, the structure and purpose of cl.13 as a whole supports the proposition that the sentence imposes an obligation, because it consists of a set of detailed prescriptions concerning the permissible exceptions to that obligation. If the first sentence of cl.13.1.1 was intended merely to be aspirational, the purpose of this detailed prescription concerning the availability of alternative employment arrangements becomes difficult to explain. Further cl.12.4, referred to earlier, provides contextual support for the proposition that it was intended that the Agreement establish the primacy of permanent full-time employment by way of legal obligations.

[16] The second sentence of cl.13.1.1 operates as an exception to the rigour of the requirement in the first sentence. BlueScope’s submission that this sentence is to be read as aspirational only has some force, given the rather woolly language used (“…it is recognised that there may be situations…”). However the submission ultimately cannot be accepted because the sentence operates as the hinge between the first sentence of cl.13.1.1 and the rest of cl.13. It identifies the circumstance in which BlueScope is relieved of the requirement to use permanent full-time employment as the standard employment arrangement and may thereby access the alternative employment arrangements identified later in the clause. Given its importance in the structure of cl.13, that causes us to conclude that the second sentence of cl.13.1.1 is to be read as establishing an objective criterion for any departure from the standard employment arrangement specified in the first sentence. The criterion is that, in the situation in question, alternative arrangements be “more appropriate” than permanent full-time employment. That is an interpretation of the sentence which is consistent with the plain and ordinary meaning of the language used.

[17] Clause 13 then sets out what the alternative employment arrangements are upon which the criterion in the second sentence of cl.13.1.1 operates. They are:

(1) the use of contractors (cl.13.1.3);

(2) part-time employment (cls.13.1.3 and 13.3);

(3) casual employment (cl.13.1.3 and cl.13.4); and

(4) fixed term employment (cl.13.2).

[18] In respect of some of these alternatives, there are specified restrictions on their use. For example, cl.13.1.3 requires in respect of part-time and casual employment that the prior agreement of the AWU to their use be obtained, subject to such consent not being unreasonably withheld. However there is no such restriction upon the use of contractors. The first sentence of cl.13.1.3 simply allows BlueScope to use contractors “to cover such situations” - the situations mentioned being, as the AWU submitted, those referred to in the second sentence of cl.13.1.1, being “situations where alternative arrangements are more appropriate”.

[19] Having stated these general conclusions concerning the proper construction of cl.13, we now turn to BlueScope’s specific appeal grounds and submissions (as summarised in paragraph [6] above). In relation to the first appeal ground, we accept that cl.13 does not contain any restriction as such on the use of contractors. No such restriction appears in cl.13.1.3 (as the Commissioner found). The second sentence of cl.13.1.1, as we have discussed earlier, identifies the circumstances in which BlueScope is not required to use permanent full-time employees, and thus operates to ameliorate the stringency of the first sentence of the clause. It is a provision which is concerned therefore with the extent to which permanent full-time employees are required to be utilised. In circumstances where the requirement to use permanent full-time employees does not apply (because the “more appropriate” criterion in the second sentence of cl.13.1.1 is satisfied), there is no restriction on the use of contractors by BlueScope. To the extent that the Commissioner determined otherwise, he was in error.

[20] This conclusion concerning the first ground of appeal means that the second ground of appeal does not arise for consideration. That makes it unnecessary for us to express a view concerning BlueScope’s contention that any type of restriction upon the use of contractors in an enterprise agreement is not a “permitted matter” within the meaning of s.172(1) of the FW Act and therefore of no effect under s.253(1)(a). It also makes it unnecessary for us to determine whether permission to appeal would be granted to permit BlueScope to advance this contention for determination, having regard to the lack of evidence that BlueScope gave any advice to its employees pursuant to s.180(5) of the FW Act before they voted to approve the Agreement that any part of cl.13 would be invalid and of no effect, and the general policy considerations concerning the stability of the system of enterprise agreements. 9

[21] In relation to BlueScope’s third ground of appeal, we agree that the Commissioner erred in the two respects identified. Firstly, the second sentence of cl.13.1.1 only requires that the use of alternative employment arrangements (which, we consider, means all or any of the permissible alternative arrangements) be more appropriate than the use of permanent full-time employment. This is a comparative test. No absolute test of appropriateness is established. The Commissioner appears to have erroneously adopted an absolute standard of appropriateness when he stated in the first sentence of paragraph [25] of the Decision: “…BlueScope is permitted to use contractors rather than full time permanent employees but only if the use of contractors is appropriate” (emphasis added). 

[22] Secondly, the comparison required by the second sentence of cl.13.1.1 is only between the use of permanent full-time employment and the use of one or more of the alternative employment arrangements specified in cl.13. Where more than one alternative employment arrangement is more appropriate than the use of permanent full-time employment, there is nothing in cl.13 which requires the use of what might objectively be considered to be the most appropriate alternative arrangement. The Commissioner, in paragraph [25] of the Decision, considered that it was necessary to “look at the appropriateness of using fixed term employment” because cl.13.2 made it clear in what circumstances it was appropriate to use fixed-term employment. We disagree. While it may be accepted that cl.13.2 contains a number of self-contained restrictions concerning the use of fixed-term employment (as does cl.13.1.3 in relation to the use of part-time and casual employment), it does not follow that the use of fixed-term employment must be given consideration in order to determine whether the use of contractors (or part-time or casual employment) is more appropriate than permanent full-time employment in a given situation. Contrary to what the Commissioner stated in paragraph [32], there is nothing in the language or structure of cl.13 which supports the proposition that the alternative employment arrangements identified in the clause are “competing alternatives” out of which a winner must be chosen.

[23] The Commissioner’s overall conclusion in paragraph [34] that he could not be satisfied that the use of contractors was more appropriate than permanent full-time employment to meet the short-term situation of a surge in demand was therefore in error for the reasons we have identified. We consider in this circumstance that permission to appeal should be granted, and that the appeal should be upheld and the Decision quashed. That makes it necessary for us to consider how the dispute proceedings initiated by BlueScope should be dealt with.

Disposition of the dispute proceedings

[24] Contrary to BlueScope’s submissions, we do not consider that there is sufficient material before us to simply determine the dispute proceedings in BlueScope’s favour by concluding that it is entitled to use contractors in the manner it originally proposed. It may readily be accepted that it would be far more appropriate to use contractors to meet an eight week surge in demand rather than to engage new permanent full-time employees for such a short period. However, it is less clear whether the use of contractors would be more appropriate than to have the existing permanent full-time workforce cover the temporary surge by the use of overtime if necessary. BlueScope asserted that there were restrictions on the use of overtime both in the Agreement and imposed by the workforce which made it impracticable to use the existing workforce to cover the surge, and that overtime imposed a greater cost than the use of contractors. However no evidence has yet been adduced in the proceedings. The AWU has filed a number of statutory declarations from workers covered by the Agreement, but they have not yet been placed into evidence. The AWU, in its written merits submissions before the Commissioner, contended that it was “safer, more efficient and no more expensive to use existing employees to perform the Packline work” 10, and therefore not more appropriate to use alternative employment arrangements. That proposition has not yet been properly tested, and certainly we are not in a position to dismiss it out of hand.

[25] Accordingly we consider that the appropriate course is to refer the matter back to the Commissioner for resolution in accordance with our decision.

Orders

[26] We make the following orders:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The Decision ([2017] FWC 2260) is quashed.

(4) The proceedings in matter C2017/2066 are referred back to Commissioner Ryan for resolution in accordance with this decision.

VICE PRESIDENT

Appearances:

M Follett of counsel on behalf of BlueScope Steel Limited t/a BlueScope.
F Knowles of counsel on behalf of the Australian Workers’ Union.

Hearing details:

2017.
Sydney:
15 June.

<Price code C, PR594908>

Printed by authority of the Commonwealth Government Printer

 1   [2017] FWC 2260

 2   [2004] FCA 1737; (2004) 138 IR 362 at [104]-[109]

 3   [2010] FWAFB 4457

 4   Amcor Limited v CFMEU [2005] HCA 10; (2005) 222 CLR 241 at 246 per Gleeson CJ and McHugh J; AMWU v Berri Pty Limited [2017] FWCFB 3005 at [114]

 5   [2015] FCAFC 142; 254 IR 238

 6   Ibid at [109]

 7   [2009] FCA 970, (2009) 188 IR 297

 8   NTEU v La Trobe University [2015] FCAFC 142 at [110]

 9   See MPR Scaffolding Pty Ltd t/a MPR Scaffolding v CFMEU [2015] FWCFB 7237at [28]-[30]

 10   AWU written outline of submissions dated 4 May 2017, paragraph [29]