Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union

Appeal against decision [2020] FWCA 4187 of Commissioner Yilmaz at Melbourne on 24 August 2020 in matter number AG2020/1980 - whether there was a denial of procedural fairness - whether the Commissioner erred in her consideration of whether the agreement passed the better off overall test (s. 186(2)(d)) - satisfied failure to afford procedural fairness - not satisfied of error in consideration of the better off overall test - permission to appeal not granted.

[1] By its notice of appeal lodged on 11 September 2020, the Construction, Forestry, Maritime, Mining and Energy Union (the Appellant) seeks permission to appeal and appeals a decision made on 24 August 2020 by Commissioner Yilmaz to approve a single enterprise agreement made with undertakings (the Decision).[1] The agreement is known as the Mobilise Group Pty Ltd Black Coal Workplace Agreement 2020 (the Agreement).

[2] The Agreement was made on 25 June 2020 when Mobilise Group Pty Ltd (the Respondent) requested that the three employees employed at the time and who would be covered by the Agreement approve the Agreement, and those three employees voted to approve the Agreement. The relevant employees were, prior to the Agreement being made, covered by the Black Coal Mining Industry Award 2010 (the Award).

[3] It is not in contention by the Respondent that at the time the employees voted for the Agreement, their employment was covered by the Award, and that the Award applied in relation to their employment. The Agreement is expressed to cover employees undertaking work that would otherwise be covered by the Award in that the coverage provisions of the Agreement mirror those of the Award.[2]

[4] On 7 July 2020, the application for approval of the Agreement was lodged with the Fair Work Commission (the Commission). On 14 July 2020, the Appellant sought from the Commission copies of the Form F16, Form F17 and Form F18A on the basis that it had concerns about the content of the Agreement.[3] On 16 July 2020, Member Assist from the Commission forwarded to the Appellant a copy of the Form F16 and Form F17, redacted in accordance with the Commission's policy to meet its privacy obligations. Member Assist also noted that there had been no Form F18A lodged. This correspondence occurred prior to the allocation of the matter to a member of the Commission.

[5] The matter was subsequently allocated to Commissioner Yilmaz (the Commissioner). The Commissioner advised the Respondent that the Appellant had sought the relevant documents and had been provided with the redacted copies of the Form F16 and Form F17 in accordance with the Commission's usual process,[4] and advised the Respondent that submissions would be sought from the Appellant regarding their standing to be heard in the matter.[5]

[6] On 24 July 2020, the Appellant filed submissions regarding the request to access an unredacted copy of the Form F17 as well as setting out submissions in support of its request to be heard and the matters it would raise were it to be heard. The Appellant copied the Respondent into this email correspondence.

[7] Also on 24 July 2020, the Respondent wrote to the Commissioner seeking an extension until 30 July 2020 in order to be able to respond to the matters raised by the Appellant.[6]

[8] The Commissioner replied to that correspondence on the same day, granting the extension. The Commissioner advised that she was "considering whether to grant the CFMMEU leave to be heard" and asked the Respondent to consider the Appellant's submissions in providing its response.[7]

[9] On 30 July 2020 the Respondent emailed submissions to the Commissioner's Chambers. However, the 30 July submissions from the Respondent were not provided to the Appellant by the Respondent or the Commissioner.

[10] On 3 August 2020, the Associate to Commissioner Yilmaz wrote to the Appellant by email stating:

"Commissioner Yilmaz has now considered the CFMMEU's submissions in relation to this application. The Commissioner confirms she will take the CFMMEU's submissions into account when issuing her decision.

The Commissioner notes that the two primary issues raised by the CFMMEU relate to genuine agreement and concerns surrounding the Agreement's coverage of casual employees for the purposes of the BOOT. Please note that the Commission has considered those two issues, both in its preliminary analysis and by taking into account the submissions made by the CFMMEU, and have raised the issue of casual employment for the purposes of the BOOT with the Applicant in our preliminary correspondence regarding the application.

In relation to your request for a partially unredacted Form F17, given the small number of employees covered by the Agreement, the Commissioner [is] of the view that providing a copy of the Form F17 as requested would not align with the Commission's privacy obligations. As such the request for a partially unredacted copy of the Form 17 is denied.

Commissioner Yilmaz has indicated that if the CFMMEU wish to provide any further submissions regarding its concerns surrounding the agreement's coverage of casual employees for the purposes of the BOOT, they are to do so by no later than midday on Tuesday 4 August 2020." [8]

[11] Later that day the Appellant responded to the Associate to Commissioner Yilmaz stating:

"We refer to the CFMMEU's submissions in relation to gaining access to the unredacted F17. These submissions dealt with redactions at paragraphs 2.10 and 4.3, in addition to accessing the material referred to in and attached to the F17.

We understand that the request to access the redactions from paragraphs 2.10 and 4.3 has been denied. We ask that you please confirm whether a decision has been made in relation to the CFMMEU's request to access the material referred to in and attached to the F17?"[9]

[12] On 4 August 2020 the Appellant responded to the invitation from the Commissioner on 3 August 2020 and filed further submissions and requested an opportunity to be heard further in the event that an oral hearing is held in relation to the application.

[13] The matter was ultimately determined on the papers by the Commissioner. On 24 August 2020, the Commissioner approved the Agreement.

[14] The notice of appeal identifies four grounds of appeal. The first contends the Commissioner acted contrary to the principles of open justice by not providing copies of the unredacted Form F16 and Form F17 to the Appellant.

[15] The second and third appeal grounds contend that the Commissioner failed to afford procedural fairness by denying the Appellant:

• access to a full copy of the Form F16 and Form F17, without redactions; and

• access to the submissions of the Respondent and relevant communications between the Commissioner and Respondent in circumstances where the Commissioner had already determined that the Appellant could assist the Commission in the discharge of its functions under Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act).

[16] The fourth ground of appeal is that the Commissioner erred in her consideration of whether the Agreement passed the better off overall test (BOOT) by:

1. determining that she was not required to assess what a casual employee would be entitled to if engaged under the relevant modern award in comparison with the Agreement; and/or

b) failing to take into account considerations relevant to a determination of whether the Agreement passed the BOOT.[10]

[17] The Appellant contends that, firstly, the Commissioner acted contrary to the principle of open justice as discussed by the Full Bench in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd (Ron Southon).[11]

[18] Secondly, that there is a strong presumption in favour of access to documents filed in the Commission and this can be ascertained from the Fair Work Rules 2013 (r.46A) and more generally, from provisions in the Act.[12]

[19] Thirdly, that the Commissioner wrongly construed the Commission's privacy obligations in the particular circumstances of this case.[13]

[20] The Respondent submits that, following the Full Bench decision in Ron Southon, it may be accepted that in the absence of special circumstances, the unredacted Form F17 is a document that is freely available to any member of the public who wishes to see it and the Commissioner was in error in declining to provide the Appellant with it. However, it is submitted that the Commissioner was not in error to find that special circumstances existed in the matter.

[21] In her decision at paragraph [3], the Commissioner noted that the Agreements Team provided the Appellant with redacted copies of the Form F16 and Form F17. The Commissioner does not otherwise make reference to her decision not to provide the unredacted copies of the documents to the Appellant. The Commissioner's determination to not provide the documents is reflected in the 3 August email sent to the Appellant:

"In relation to your request for a partially unredacted Form F17, given the small number of employees covered by the Agreement, the Commissioner of the view that providing a copy of the Form F17 as requested would not align with the Commission's privacy obligations. As such the request for a partially unredacted copy of the Form 17 is denied."[14]

[22] We consider that the Commissioner was in error not to provide the unredacted Form F17 document. Firstly, it is not in contest that the decision in Ron Southon is authority for the proposition that (absent of special circumstances warranting confidentiality) the Commission files are available for inspection by any member of the public. We agree with the Full Bench decision and its articulation of the principles of open justice. Secondly, it is not apparent in the particular circumstances that the individuals would be reasonably identifiable, simply by the revelation that there were three employees who voted for and were covered by the Agreement.

[23] The information sought by the Appellant in respect to the Respondent's Form F17 declaration did not seek personal information, in as much as the identity of any individual employee would not be ascertained simply by reference to the number of people who voted, or the number who were casual employees. In the circumstances, we are satisfied that the Commissioner was in error to deny the Appellant the unredacted Form F17.

[24] Appeal grounds 2 and 3 are concerned with the denial of procedural fairness. The Appellant contends there are two distinct elements to the denial of procedural fairness. The first relates to the denial to the Appellant of an unredacted copy of the Respondent's Form F16 and Form F17.

[25] The second is that the Commissioner failed to provide the Appellant with access to all of the Respondent's submissions and communications with the Commissioner. As is apparent from the foregoing summary, the Appellant was not provided with the Respondent's 30 July 2020 reply submissions, nor the correspondence from the Commissioner to the Respondent seeking those reply submissions.

[26] The Respondent in its written submissions, submit that, in respect to both ground 2 and 3, that the Appellant is not "a person aggrieved" by the Commission's decision within the meaning of that expression, and in particular, that the decision of the Commissioner to accept submissions from the Appellant in relation to whether to approve the Agreement does not make the Appellant "a person aggrieved."[15]

[27] However, at the hearing, counsel for the Respondent indicated that submission was no longer pressed, having taken into account the decision in Construction, Forestry, Maritime, Mining and Energy Union v LS Precast Pty Ltd and the authorities cited therein.[16] We agree, consistent with the approach taken by the Full Bench in that decision, that the Appellant is a person aggrieved.

[28] In considering whether there was a denial of procedural fairness, we start with a consideration of the process followed by the Commissioner that was set out in summary earlier in the decision.[17] It is evident from a consideration of that summary, that the Commissioner did not explicitly state at any point that she acceded to the Appellant's request to be heard. However, it is apparent by her actions in sending the 3 August email where it was indicated that the Appellant's submissions of 24 July would be taken into account and then inviting the Appellant to make further submissions, that the Commissioner had in fact acceded to the Appellant's request.

[29] Considering all of the circumstances, it is apparent that the Commissioner acceded to the Appellant's request to be heard. In the circumstances, the Appellant had a right and a legitimate expectation to be afforded procedural fairness. In Construction, Forestry, Mining and Energy Union v Ditchfield Mining Services Pty Limited (Ditchfield),[18] a case to which both parties referred, the Full Bench made the following observations about procedural fairness which are relevant to the consideration here:

"[34] Administrative decision-makers, including Members of the Commission, must accord procedural fairness to those affected by decisions they make. What is required to achieve this in any given case should be determined by reference to "what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made". The procedure adopted by an administrative decision-maker can sometimes itself be shown to have failed to afford a fair opportunity to be heard to a person. In such cases, a denial of procedural fairness may be established by nothing more than that failure, unless the failure did not deprive the person of the possibility of a successful outcome.

[35] However, not every breach of the rules of natural justice will affect a decision. As the High Court observed in Re Refugee Review Tribunal; Ex parte Aala:

"Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this court in Stead v State Government Insurance Commission when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome". In this case, however, the denial of natural justice did not affect the outcome. After analysing the reasons of the second tribunal and the history of the proceedings, the best conclusion is that the tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it."

[36] Where an obligation to accord procedural fairness to a person arises, that which is required will also depend upon the circumstances in each case."[19]

[30] The failure of the Commissioner to provide the unredacted Form F17 and the submissions of the Respondent of 30 July 2020 amounts to a denial of procedural fairness, having regard to the approach the Commissioner took to the request by the Appellant as set out above.

[31] Without the unredacted Form F17, the Appellant made its submissions without any knowledge of the number of casual employees, and it would have been procedurally fair for the Appellant to have been provided with this information.

[32] The Appellant was invited to and did make further written submissions beyond its initial submissions. However, when it did so, it was not aware that the Commissioner had invited and received detailed submissions from the Respondent responsive to the matters raised by the Appellant and nor was it provided with a copy. These circumstances are therefore akin to those in Ditchfield where the Appellant was "... denied the opportunity to join issue with those submissions."[20]

[33] In its submissions, the Respondent referred to and largely relied on two decisions of the Full Bench of the Commission: Construction, Forestry, Mining and Energy Union v SESLS Industrial Pty Ltd (SESLS Industrial)[21] and Construction, Forestry, Maritime, Mining and Energy Union v SRSW Pty Ltd (Stella Recruitment).[22] The Commissioner clearly placed reliance on those decisions in determining the matter.[23]

[34] In the circumstances, the opportunity afforded to the Appellant to provide further submissions on the issue of casual employees and the BOOT was constrained because the Appellant was not appraised of the full extent of the submissions made by the Respondent, particularly regarding the SESLS Industrial and Stella Recruitment decisions.

[35] This was plainly a denial of procedural fairness. The Appellant was not afforded the opportunity to address all the matters raised, particularly the two Full Bench decisions. While the Appellant may well be aware of those decisions, as was pointed out by the Respondent,[24] they were not aware that the Respondent had made detailed reference to them in their response. It follows that the failure to provide the Appellant with the unredacted Form F16 and Form F17, and the submissions of the Respondent amounted to a denial of procedural fairness.

[36] However, our conclusion above does not necessarily result in the grant of permission to appeal. The Appellant accepts that the lack of procedural fairness is capable of being cured in context of this appeal,[25] and that it has been given full opportunity on appeal to agitate the matters it would have advanced had it been provided with the information missing from the Form F17 and the Respondent's submissions. Therefore, unless we are satisfied that the Commissioner was in error in determining that the Agreement passed the BOOT, there would be no utility in granting permission to appeal, or even if permission was granted, upholding the appeal.

[37] Having considered the submissions from the Appellant relating to this ground, we are not satisfied that the Commissioner was in error in reaching a state of satisfaction that the Agreement passes the BOOT.

[38] Firstly, it is not apparent that if the Appellant had the benefit of the redacted material from the F17, it would have done anything differently.

[39] The Appellant submits that, had they had access to the unredacted Form F17, and therefore knew there were no casual employees within the workforce of the Respondent, they would have applied a greater focus on prospective employees, as discussed in the Loaded Rates Agreements decision.[26] However, in its submissions dated 24 July 2020 the Appellant outlined it proceeded on the "assumption" that there were no casual employees.[27] This assumption was correct and in the circumstances, knowledge that as a matter of fact there were no casual employees employed at the time would presumably have made no material impact on those submissions. At the hearing, the Appellant asserted that had they known there were no casual employees, they would have applied a greater focus on prospective employees as discussed in the Loaded Rates Agreements decision.[28] However, we observe in the Appellant's submissions before the Commissioner, the issue of prospective employees in the context of the Loaded Rates Agreements decision was squarely raised.[29]

[40] In relation to the submissions dated 30 July 2020 that the Appellant did not receive the Appellant submitted it was not correct to say that its position at first instance would have been unchanged even if it had had access to the material.[30] However, it is not apparent to us in what respect the Appellant's submissions would have been altered and in any case, the Appellant has now had the opportunity before us to raise the matters they would have raised had they known the content of the 30 July 2020 submissions.

[41] Having considered the submissions of the Appellant, we are not satisfied the Commissioner was in error in reaching a state of satisfaction as to the BOOT, nor are we satisfied that there is any new argument put by the Appellant in these proceedings which would have changed the position.

[42] The 30 July 2020 submissions from the Respondent that were relevant to the BOOT consideration were submissions as to what the Commissioner could take from the SESLS Industrial and Stella Recruitment decisions. It is apparent that the Commissioner took these decisions into account.[31] The fact that the Agreement allowed for casual employment of production and engineering employees, where the Award does not, is a matter the Commissioner needed to consider in assessing the BOOT and it is apparent from the Decision read as a whole, and in particular paragraph [14], that she did so.

[43] It is clear the Commissioner accepted that the Respondent's submissions that the 25% loading was sufficient for the Agreement to pass the BOOT in relation to prospective casual production and engineering employees. In reaching that satisfaction, the Commissioner also took into account the additional 1% remuneration above the Award and the casual conversion clause in the Agreement. In so doing, the Decision was consistent with the decisions of the Full Bench in SESLS Industrial and Stella Recruitment. In Stella Recruitment, the Full Bench agreed with the Full Bench in SESLS Industrial that the 25% loading for casual staff employees was a matter which could be taken into account in considering the adequacy of the 25% loading for casual production and engineering employees in the agreement. While it was not accurate for the Commissioner to say in her Decision that the Full Bench in SESLS Industrial and Stella Recruitment found the 25% loading was an "acceptable loading", the Commissioner did not fall into error in taking the 25% loading into account. Indeed, is clear in paragraph [14] of the Decision that the Commissioner made her own assessment of the BOOT and did not approach the task on the basis that the SESLS Industrial decision established a binding rule.

[44] The Commissioner did not refer separately to the components of the Appellant's submissions, including those relating to the impact of the lack of annual leave and personal leave for casuals in the BOOT analysis and the associated mathematical modelling. However, this does not mean the Commissioner failed to consider the contentions raised. The submissions by the Appellant were in many respects the same as those advanced and rejected in SESLS Industrial and Stella Recruitment, particularly those related to the generous personal leave entitlements.

[45] As was set out by the Full Bench in Stella Recruitment:

"Whether the Commission is satisfied that an employee is better off overall under an agreement than under the relevant award requires an evaluative assessment after consideration of the provisions of the award and the agreement, including the respects in which each may be more beneficial or less beneficial to the employee. As the High Court noted in Aldi Foods Pty Ltd v SDAEA, this kind of assessment has been described in other contexts as "a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations", involving "individual choice or discretion as to which there may well be differences of opinion by different minds." "

[46] Section 186(2)(d) of the Act requires the Commissioner to decide whether she was satisfied that the Agreement passes the BOOT, including in respect to prospective casual employees.[32]

[47] The mathematical modelling submitted by the Appellant to the Commission sought to demonstrate the Appellant's primary submission that on leave entitlements alone, a casual employee will not be better off unless their engagement is over a certain number of hours over a certain time frame.[33] The mathematical model, for the purpose of comparing a casual with a full time worker, includes the entire personal leave entitlement of 105 hours as a financial benefit as well as the annual leave entitlement. The inclusion of the annual leave entitlement in the model is appropriate, it is not a contingent benefit. However, personal leave is a contingent benefit and the model provided must be considered in that context. The inclusion of personal leave, a contingent benefit, as an assured financial benefit in the model of course inflates the value of the Award entitlements for the purposes of the comparison. This is because the benefit, including the particular amount of leave, only arises in circumstances where the prospective employee actually requires personal leave.

[48] In this respect, the Appellant's submissions are a reiteration, albeit on this occasion with some mathematical modelling, of the proposition that greater weight ought to be given to the significance of casual employment under the Agreement and the consequent loss of personal and annual leave.

[49] As was the case in Stella Recruitment, even if we were to share that preference, that does not speak to an error on behalf of the Commissioner.

[50] The Appellant's contentions about loss of job security associated with casual employment were similar to those advanced in SESLS Industrial. The Full Bench in SESLS Industrial considered those contentions and observed that it is not necessarily the case that the employment of full time and part time employees is more secure, although this will often be the case.[34] In Stella Recruitment, the Full Bench concurred with that observation, [35] as do we.

[51] In respect of the principles in the Loaded Rates Agreements decision, it is apparent that the Commissioner took that decision into account.[36] It is not apparent that the Commissioner has failed to apply or misapplied any of the principles set out in that decision.

[52] Satisfaction of the BOOT under s186(2)(d) is a jurisdictional prerequisite for the approval of an enterprise agreement. It also is a matter that involves the exercise of discretion,

and involves a degree of subjectivity or value judgement.[37] The issue before us is whether the

Commissioner made an error of the kind described in House v The King[38] in making her decision.

[53] We do not consider that any such error was made in the Commissioner's application of the BOOT or that the Decision to approve the Agreement was affected by appealable error.

[54] In the circumstances, while we are satisfied that there was a lack of procedural fairness afforded to the Appellant, we are not satisfied that lack of procedural fairness would have made a difference to the outcome.

[55] For that reason, we are not satisfied that the public interest is enlivened and nor are we persuaded that there is any other ground to grant permission to appeal.

[56] Permission to appeal is therefore refused and the appeal is dismissed.

[1] [2020] FWCA 4187.

[11] Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd [2016] FWCFB 8413.

[12] See, for example, Fair Work Act 2009 (Cth), ss 577(c), 593(2) - (3), 594.

[13] Appellant's submissions, paragraph [14].

[14] Respondent's submissions, paragraph [20].

[16] Construction, Forestry, Maritime, Mining and Energy Union v LS Precast Pty Ltd [2019] FWCFB 1431 at [115].

[17] [2020] FWCA 4187 at [2] - [6].

[18] [2019] FWCFB 4022.

[21] [2017] FWCFB 3659.

[22] [2020] FWCFB 2052.

[23] [2020] FWCA 4187 at [47].

[26] Loaded Rates Agreements [2018] FWCFB 3610.

[31] [2020] FWCA 4187 at [12] - [14].

[32] Fair Work Act 2009 (Cth) s.193(1)

[34] [2017] FWCFB 3659 at [41].

[35] [2020] FWCFB 2052 at [14].

[36] [2020] FWCA 4187 at [7].

[37] Transport Workers' Union of Australia v Jarman Ace Pty Ltd [2014] FWCFB 7097 (28 October 2014).

[38] [1936] HCA 40; (1936) 55 CLR 499, 404-405.

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