[2019] FWCFB 5861

On 23 August 2019, an administrative error caused an incorrect version of the decision with the above code to be published electronically. The correct and final version appears below and wholly replaces the decision earlier issued.

Ingrid Stear

Associate to Vice President Hatcher

27 August 2019

[2019] FWCFB 5861


Fair Work Act 2009
s.604 - Appeal of decisions

Linfox Australia Pty Ltd
Australian Federated Union of Locomotive Employees; Australian Rail, Tram and Bus Industry Union



Appeal against decision [2019] FWC 3653 of Commissioner Spencer at Brisbane on 28 June 2019 in matter number B2019/422.

[1] Linfox Australia Pty Ltd (Linfox) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Spencer on 28 June 2019 1 (Decision). The Decision concerned an application made by Linfox pursuant to s 426 of the Fair Work Act 2009 (FW Act) for the suspension for a two month period of protected industrial action being taken by employees of Aurizon Operations Limited (Aurizon) who are members of the Australian Federated Union of Locomotive Employees (AFULE) or the Australian Rail, Tram and Bus Industry Union (RTBU). Linfox contended that the protected industrial action threatened to cause it significant harm as a third party. In the Decision the Commissioner rejected the application on the basis that she was not satisfied that the requisite significant harm to Linfox was threatened. In its appeal, Linfox contends that the Commissioner erred in a number of respects in her consideration of “significant harm”.

[2] Section 426(1) of the FW Act requires the Commission to make an order suspending protected industrial action for a proposed enterprise agreement “that is being engaged in” if the requirements set out in the section are met. Subsections (2)-(6) of s 426 set out the requirements referred to in s 426(1). Relevant to this proceeding, s 426(3) and (4) provide:

(3)  The FWC must be satisfied that the protected industrial action is threatening to cause significant harm to any person other than:

(a)  a bargaining representative for the agreement; or

(b)  an employee who will be covered by the agreement.

(4)  For the purposes of subsection (3), the FWC may take into account any matters it considers relevant including the extent to which the protected industrial action threatens to:

(a)  damage the ongoing viability of an enterprise carried on by the person; or

(b) disrupt the supply of goods or services to an enterprise carried on by the person; or

(c) reduce the person's capacity to fulfil a contractual obligation; or

(d) cause other economic loss to the person.

[3] The relevant facts of the matter are as follows. Aurizon is a rail freight business which has major operations in Queensland. Linfox is a transport and logistics business which, in Queensland, uses rail as one of the modes by which it transports freight. Linfox contracts with Aurizon to pull and maintain its rail wagons and containers and to provide access to three of Aurizon’s rail freight terminals. Employees of Aurizon in its Bulk Business Unit, including employees who perform functions in connection with Aurizon’s contractual relationship with Linfox, are currently bargaining with Aurizon for a new enterprise agreement, and have taken protected industrial action pursuant to the relevant provisions of the FW Act. At the time that Linfox lodged its s 426 application (on 24 May 2019), employees of Aurizon were engaged in an overtime ban which had commenced on 15 May 2019 and was to end on 28 May 2019. A 48-hour stoppage of work had also been notified to occur on 28-30 May 2019. Linfox contended that this industrial action would result in the number of train services it could provide to transport its customers’ freight being significantly reduced, to its commercial detriment.

[4] As earlier stated, Linfox’s application sought that the protected action be suspended for a period of two months. The Commissioner heard the application expeditiously on 27 May 2019, and advised the parties in writing shortly after the completion of the hearing that day that she did not intend to grant the application and would issue her reasons as soon as possible. We will assume in Linfox’s favour, for the purpose of the 21-day time limit to file an appeal in rule 56(2) of the Fair Work Commission 2013 only, that this did not itself constitute the formal decision in the matter.

[5] In the Decision issued on 28 June 2019, the Commissioner made extensive reference to the Full Bench decision in CFMEU v Woodside Burrup Pty Ltd2 which addressed among other things the “significant harm” requirement in s 426(3). In that decision the Full Bench construed the requirement in the following way:

[44] When regard is had to context of the FW Act as a whole and to the explanatory memorandum, the expression “significant harm” in s.426(3) should be construed as having a meaning that refers to harm that has an importance or is of such consequence that it is harm above and beyond the sort of loss, inconvenience or delay that is commonly a consequence of industrial action. In this context, the word “significant” indicates harm that is exceptional in its character or magnitude when viewed against the sort of harm that might ordinarily be expected to flow from industrial action in a similar context. In this way, an order will only be available under s.426 in very rare cases, as contemplated by the Explanatory Memorandum. It follows that it will not, of itself, be sufficient that the harm, viewed in isolation, can be characterised as “substantial”. Substantial harm to third parties is a common consequence of effective industrial action. Unless the harm is out of the ordinary then suspension would contrary to the legislative intention that suspension should not be able to used generally to prevent legitimate protected industrial action in the course of bargaining. In assessing whether there is “significant harm” context is also important. A particular quantum of financial loss may constitute “significant harm” in one context but not in another.

[6] The Commissioner followed Woodside Burrup and, on her assessment of the evidence before her, concluded that Linfox had not satisfied the requirement in s 426(3) as elucidated in Woodside Burrup.

[7] Linfox filed its appeal on 18 July 2019. This was 20 days after the Decision was issued, and 52 days after Linfox was advised by the Commissioner that its application would not be granted. Linfox did not seek an expedited hearing in its notice of appeal.

[8] Linfox’s appeal grounds and submissions advance, in summary, the following contentions:

(1) The test in Woodside Burrup for “significant harm” was incorrect, and the Commissioner erred by applying that test.

(2) Having applied the test in Woodside Burrup, the Commissioner erred in finding that the harm being suffered by Linfox was not significant.

(3) Applying the principles in Woodside Burrup, the Commissioner erred in concluding that the protected industrial action was not threatening to cause significant harm to Linfox and would not damage the ongoing viability of the relevant operating division of Linfox.

[9] Linfox contended that permission to appeal should be granted, notwithstanding that there was currently no protected industrial action being undertaken, because:

  bargaining involving Aurizon, the AFULE and the RBTU was continuing, and there was a possibility of further protected industrial action occurring which might cause harm to Linfox;

  the decision in Woodside Burrup was incorrect and inconsistent with the Full Bench decision in NTEIU v Monash University3 and should be corrected in the public interest;

  if there were future protected industrial action, substantial injustice might be visited upon Linfox if a further application which it made under s 426 was defeated because of the application of Woodside Burrup;

  the “bar” had been set too high in Woodside Burrup, which had operated to discourage the making of legitimate applications under s 426; and

  although the appeal might not have an immediate practical consequence, it represented a proper opportunity to reconsider Woodside Burrup at the appellate level, since it was unlikely that there would ever be a circumstance where a Full Bench could consider the issue while protected industrial action was occurring.

[10] It is well-established that a lack of any practical purpose in an appeal, even if appealable error is demonstrated, provides a proper basis to refuse permission to appeal. 4 This principle has been applied in appeals from decisions concerned with the circumstances of protected industrial action.5

[11] In this case, it is clear that the appeal has no practical utility. It is accepted by Linfox that there is currently no protected industrial action being undertaken. Accordingly, even if permission to appeal were to be granted and the appeal upheld, Linfox’s application would still have to be dismissed because the jurisdictional precondition in s 426(1) that there be protected industrial action “that is being engaged in” could not be satisfied. It may also be noted that if the Commissioner had granted the relief sought by Linfox at first instance, namely an order suspending protected industrial action for two months, that order would by now have expired some time ago.

[12] We do not consider that any element of utility in the appeal can be established by reference to the possibility of future protected industrial action by Aurizon employees. Linfox’s submission in this regard is entirely speculative. Even if further protected industrial action is taken, it is impossible to say what form that industrial action might take, whether it would cause harm to Linfox or, if it did, whether the circumstances would be such as to render the application of Woodside Burrup decisive as to the disposition of any s 426 application which Linfox might make. This is not a case where there has been a pattern of industrial action causing third party harm which would support a conclusion that there was practical utility in the appeal such as to justify the grant of permission.

[13] We reject the proposition advanced by Linfox that there will never be an appropriate opportunity for a Full Bench to consider the correctness of Woodside Burrup in circumstances of practical utility, because the usually short currency of protected industrial action would mean that there would not be time for a matter to come before a Full Bench. There are many cases where Full Benches of this Commission have dealt with cases involving industrial action within extremely short timeframes. Examples include Victorian Hospitals' Industrial Association v Australian Nursing Federation6 MUA v ASP Ship Management Pty Ltd,7 MUA v Teekay Shipping (Australia) Pty Ltd,8 and MUA v Patrick Stevedores Holdings Pty Ltd.9 There is no reason why the same could not have occurred in this matter.

[14] For these reasons, we have decided that permission to appeal should be refused. We so order.

al of the Fair Work Commission with the memeber's signature.


Printed by authority of the Commonwealth Government Printer


 1   [2019] FWC 3653

 2   [2010] FWAFB 6021, 198 IR 360

 3   [2013] FWCFB 5982

 4   See e.g. Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia [2013] FWCFB 4250 at [14]; Ferrymen Pty Ltd [2013] FWCFB 8025, 238 IR 258 at [48]; at [28]; New South Wales Bar Association v McAuliffe [2014] FWCFB 1663, 241 IR 177 at [28]; Appeal by KCL Industries Pty Ltd [2016] FWCFB 3048, 257 IR 266 at [8].

 5   See e.g. MUA v Harbour City Ferries Pty Ltd [2014] FWCFB 3858

 6   [2011] FWAFB 8165, 214 IR 148

 7   [2015] FWCFB 8057, 254 IR 143

 8   [2015] FWCFB 4895

 9   [2016] FWCFB 711, 256 IR 137