Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2022] FWC 1840 of Commissioner McKinnon at Sydney on 20 July 2022 in matter number C2022/1228

• [1] The Australian Manufacturing Workers' Union (AMWU) has lodged an appeal, for which permission is required, against a decision made by Commissioner McKinnon on 20 July 2022.[1] The decision concerned an application by the AMWU under s 739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute with Opal Packaging Australia Pty Ltd (Opal) concerning whether Opal could, under the Orora Fibre Packaging National Enterprise Agreement 2019 (Agreement), proceed with a proposal to change the pattern of working hours for maintenance employees at Opal's site at its Revesby plant.

• [2] The current arrangement at Revesby is that employees, who under the Agreement have a 35-hour week, are rostered to work 37 hours per week, with 2 hours being banked and taken as time off at a later time. Opal proposed that, from 1 January 2022, this be altered so that employees would be rostered for only 35 ordinary hours per week plus 10 minutes rostered overtime per day for the purpose of a handover from one shift to the next. The purpose of the proposed change was to align the working hours of Revesby employees with those of production and despatch employees.

• [3] The AMWU disputed the introduction of this change. It contended that the change would be unsafe, and could not be made under clause 5(b) of the Agreement (which preserves "historical site differentials") and clause 9.1(m) (which prohibits further claims). Once the AMWU disputed the matter, clause 15.3 operated to preserve the status quo until the dispute was resolved pursuant to the dispute resolution procedure prescribed by clause 15. The dispute was ultimately arbitrated by the Commissioner pursuant to that procedure.

• [4] In her decision, the Commissioner rejected the AMWU's contentions that the proposed change would be unsafe or that it was prohibited by clause 9.1(m).[2] The Commissioner accepted the AMWU's contention that the current working hours arrangement for maintenance employees at the Revesby plant was an historical site difference to which clause 5 of the Agreement applies. Relevantly, clause 5(b) of the Agreement provides:

(b) The parties agree that interstate site differentials will be maintained for the period of the Agreement and recognise that Wage Parity across Orora Fibre packaging sites is an issue between the parties. The parties agree to consult with each other at a national level to review their respective positions on Wage Parity prior to the next EBA. Initial consultation will commence 3 months after approval of the agreement by FWC, except that where within a state a site is identified as having a significant wages anomaly, then the parties shall meet within one month of the Agreement being accepted by the members to ensure an outcome which will rectify the anomaly.

• [5] The Commissioner determined that clause 5(b) preserved the current working hours arrangement at the Revesby plant, but only for the "period of the Agreement".[3] The Commissioner considered that the "period of the Agreement" was that provided for by clause 2 of the Agreement. Clause 2 provides:

This Agreement will come into force on the seventh day after it is approved by the Fair Work Commission (FWC) and will remain in force until 30 September 2022 or thereafter until a replacement Agreement is negotiated.

• [6] The Commissioner found that the effect of clause 2 was that the "period of the Agreement" meant until 30 September 2022.[4] The Commissioner determined the dispute on the basis that Opal was entitled to proceed with the proposed change to working hours on and from 1 October 2022 subject to prior compliance with its consultation obligations under clause 16 of the Agreement.[5]

• [7] The AMWU filed its notice of appeal on 22 August 2022. The notice of appeal states the following grounds of appeal:

1. The Commissioner erred in her construction of the Agreement by:

(a) construing the phrase 'period of the Agreement' in cl.5(b) to mean the nominal expiry date of the Agreement, being 30 September 2022;

(b) finding that Opal could implement the proposed roster change by virtue of the dispute resolution procedure and/or consultation pursuant to cls. 15 and 16 of the Agreement;

(c) finding Opal's proposed roster change was not an extra claim pursuant to cl.9.1(m) of the Agreement; and

(d) answering the question for the determination 'Yes, but only on or after 1 October 2022'.

1. The Commissioner acted outside power in determining that Opal could make the proposed roster change, as this decision was inconsistent with a term of a fair work instrument that applied to the parties and was thus prohibited by s.739(5) of the Fair Work Act 2009 (Cth).

• [8] The appeal was filed outside of the 21-day period prescribed by r 56(2)(a) of the Fair Work Commission Rules 2013. Accordingly, the AMWU requires the grant of an extension of time under r 56(2)(c). In its notice of appeal, the AMWU contends that an extension should be granted because the notice of appeal was prepared within the 21-day period but not filed due to an administrative error, the length of the delay was minimal, it was likely that one or more grounds of the appeal would be upheld if the extension was granted, and that there would be no prejudice to Opal if an extension was granted but there would be prejudice to the AMWU and affected employees if the extension was refused.

• [9] In its notice of appeal filed on 22 August 2022, the AMWU did not seek a stay of the decision. However, it made an application in this matter on 26 August 2022 for an "interim decision" pursuant to s 589(2) of the FW Act to the following effect:

"In accordance with the dispute resolution procedure contained in the Orora Fibre Packaging National Enterprise Agreement 2019, Opal was restrained from taking steps to implement the proposed roster change with respect to Revesby maintenance employees from 14 December 2021".

• [10] Insofar as the AMWU seeks that an interim decision of a substantive (i.e non-procedural) nature be made by the Commission as part of the exercise of its appellate jurisdiction in Subdiv E of Div 3 of Pt 5-1 of the FW Act in advance of any hearing of the appeal by a Full Bench, its application is misconceived. Section 589(2) does not constitute an independent source of power in respect of an appeal proceeding which can be exercised absent satisfaction as to the necessary prerequisites for the exercise of appellate power otherwise provided for by the FW Act.[6] Those prerequisites include the grant of permission to appeal, the identification of appealable error and, in this case, the prior grant of an extension of time to file the appeal. Until the Commission, constituted by a Full Bench, has satisfied itself as to those matters, it has no power to make any substantive orders in an appeal proceeding. Accordingly, the application for an interim decision is refused.

• [11] In an amended notice of appeal filed on 26 August 2022, the AMWU applied for an order staying the decision under appeal pursuant to s 606 of the FW Act. Opal opposes the grant of a stay. This decision is concerned with the contested stay application.

• [12] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill.[7] Paragraph [5] of that decision states:

"[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted."

• [13] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits. This assessment is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant's full argument and usually will not have had the opportunity to properly peruse the case materials.[8]

• [14] The application of the above principles is subject to the applicant for a stay demonstrating at the outset that there is an operative decision with ongoing effect that is capable of being stayed. The refusal or dismissal of an application does not usually give rise to anything capable of being stayed pending an appeal.[9]

• [15] In its submissions opposing the grant of a stay, Opal submitted (albeit in the context of the balance of convenience) that a stay order would have no utility because it would not have the effect of restraining Opal from implementing the proposed change between 1 October 2022 and the date the appeal is determined and, if anything, it would stay the operation of that part of the Commissioner's reasoning which at present restrains Opal from implementing the proposed change before 1 October 2022. I do not accept this submission. As earlier stated, the position until the Commissioner issued her decision determining the dispute was that clause 15.3 operated to preserve the status quo, under which the current arrangement of working hours was to stay in place. The effect of the decision was to discharge Opal's status quo obligation under clause 15.3. An order staying the decision will therefore effect a reversion to the pre-existing status quo position required by clause 15.3 until the hearing and determination of the appeal.

• [16] In relation to the merits of the appeal, I am satisfied that at least ground 1(a) of the appeal is arguable with some reasonable prospects of success. On a very preliminary review of the materials, there appears to be a degree of ambiguity associated with the expression "period of the Agreement" in clause 5(b) when read in conjunction with clause 2, and it is reasonably arguable that the expression may be read as referring to the period in which the Agreement remains in operation (rather than the period until the nominal expiry date) having regard to the words "or thereafter until a replacement Agreement is negotiated" in clause 2 and the reference to consultations "prior to the next EBA" in clause 5(b). Because ground 1(a) is reasonably arguable, I consider that the AMWU has reasonable prospects in obtaining the grant of an extension of time to file its appeal and the grant of permission to appeal.

• [17] In relation to the balance of convenience, the starting point for consideration is that the appeal is listed for hearing on 27 October 2022 and can be expected to be determined quickly. Opal wishes to introduce the proposed change to working hours on or about 3 October 2022 and has commenced consultations to that end. The grant of a stay would therefore, if the appeal is ultimately unsuccessful, only delay the introduction of the proposed change for a relatively short period. However, if no stay is granted and the appeal is successful, this will mean that consultation will proceed to completion, the change will be introduced on 3 October 2022, and then there will have to be a reversion to the previous working hours arrangement when the appeal decision is issued. This would, in my view, be unnecessarily disruptive and confusing for employees. In addition, in the period from 3 October 2022 until the appeal decision, the employees will cease to accrue time off in lieu of overtime, and this will not be recoverable if the appeal succeeds. For these reasons, I am satisfied that the balance of convenience favours the grant of a stay.

• [18] Accordingly, I grant the AMWU's application for a stay order. The order will be issued in conjunction with this decision.

A Pollock of counsel and C Yuen for the respondent.

[1] [2022] FWC 1840

[6] Applying, by parity of reasoning, Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Anor [2020] FWCFB 4514; 298 IR 254

[7] [2000] AIRC 785, Print S2639

[8] Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [9]

[9] Construction, Forestry, Mining, and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276 at [11]; Bahonko v Sterjov [2007] FCA 1717 at [50]

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