[2018] FWCFB 1412

Fair Work Act 2009

s.603 - Application to vary or revoke a FWC decision

Construction, Forestry, Mining and Energy Union, the Australian Manufacturing Workers' Union & the Australian Workers' Union

Applications to revoke decision [2017] FWCFB 2741 in matter C2017/1513 - application dismissed.

[1] On 5 July 2017, we issued a Decision[1] (Appeal Decision) which upheld an appeal by BGC Contracting Pty Ltd (Respondent) in relation to a decision[2] issued by Deputy President Binet. The Deputy President's decision held that the Mining Enterprise Agreement 2016 (Proposed Agreement) was not genuinely agreed to by the employees covered by the Proposed Agreement in accordance with section 186(2)(a) of the Fair Work Act 2009 (Cth) (Act) and/or that the Proposed Agreement passed the Better Off Overall Test ('BOOT') as required by section 186(2)(d) and/or that its deficiencies could be corrected by undertakings.

[2] On appeal, we found that the Deputy President failed to afford the Respondent procedural fairness and that the decision of KCL Industries Ltd[3] was distinguishable on the question of whether employees had a stake in the Proposed Agreement. Therefore, we quashed the decision of Deputy President Binet and referred the matter to Deputy President Gostencnik to rehear the matter.

[3] Prior to Deputy President Gostencnik hearing the matter on 16 November 2017, the Federal Court handed down judgments in CFMEU v One Key Workforce Pty Ltd[4] (One Key Workforce) and CFMEU v Thiess Pty Ltd[5] (Thiess). As a result of the judgments handed down by the Federal Court in One Key Workforce and Thiess, the CFMEU, the AMWU and the AWU (Appellants) respectively lodged separate applications in matters C2017/6471, C2017/6493 and C2017/6505. All three applications were made pursuant to s.603 of the Fair Work Act 2009 (Cth) (Act) for revocation of our Appeal Decision handed down on 5 July 2017.

[4] Noting the synonymous nature of the applications, the above matters were listed for mentions and directions before Vice President Catanzariti on 30 November 2017. Subsequent to this listing, the parties filed submissions in relation to whether our Appeal Decision should be revoked. By way of correspondence, we enquired with the parties as to whether the matter could be determined on the papers and the parties confirmed that we could determine the applications in this manner.

[5] The Respondent contended that the s.603 applications lodged by the Appellants are incompetent. The Respondent asserted that s.603 does not provide any scope for a further stage of statutory appellate review within the Commission's auspices. The Respondent posited that the revocation power under s.603 of the Act may be exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision, or where the initial decision was based on incomplete or false information.[6] The Respondent submitted that these cases in which a decision has been revoked due to 'changed circumstances' involved a change in factual circumstances, rather than a subsequent decision handed down by a superior court in another proceeding.

[6] The Respondent contended that the approach advanced by the Appellants would be manifestly unworkable as there would be no end to such applications: any substantive change in the law brought about by a decision of a Full Bench of the Commission, or a decision of a superior court, could give rise to a string of s.603 applications brought by disaffected parties to earlier Commission proceedings.

[7] The Respondent asserted that Deputy President Gostencnik is seized of the Commission's appellate jurisdiction to conduct the rehearing. The Respondent posited that the Full Bench as constituted on 16 May 2017 was, in effect, functus officio following that referral: nothing in s.607(3) establishes any form of ongoing oversight or intervention by the referring member(s) in the referred matter.

[8] The Appellants contended that there is power pursuant to s.603 of the Act to revoke the Appeal Decision. The Appellants asserted that the nature of the power under s.603 was considered in Glen Cameron Nominees Pty Ltd v Transport Workers' Union of Australia[7] (Glen Cameron). The Appellants posited that the reasoning in Glen Cameron was germane to the present matter. The Appellants submitted that the Full Bench in Glen Cameron rejected the appellant's contention in that matter that the power under s.603 was limited to the matters described by Ross J in Grabovsky, namely, to instances where there has been a change in circumstances or where the initial decision was based on incomplete or false information, or fraudulently or otherwise procured. The Appellants contended that the Full Bench ultimately decided to revoke the decision and determine the appeal to finality.

[9] The Appellants asserted that Munro J considered the predecessor to s.603 under the Workplace Relations Act 1996 (Cth) in AMWU and another re Rheem - Rydalmere Plant Industrial Action Order 2002[8] (Rheem). The Appellants posited that Munro J extracted and endorsed the analysis of the Conciliation and Arbitration Court in The Australian Railways Union v Victorian Railways Commissioners[9] (Victorian Railways Commissioners) in relation to the equivalent power under the Conciliation and Arbitration Act 1904 (Cth). In particular, that the power was given to the Commission without qualification and its exercise would ultimately hinge on the circumstances of the particular case.[10] The Appellants submitted there is no reason to think that the power under s.603 should not be similarly applied.

[10] The Appellants submitted that s.603 was also considered by the High Court in Esso Australia Pty Ltd v The Australian Workers Union[11] (Esso). The Appellants asserted that the plurality stated that s.603 was a power of considerable breadth and stood in contrast to the limited power under s.602 to correct obvious errors.[12] Further, that the power was doubtlessly available where oversight or inadvertence had occurred.[13]

[11] The Appellants contended that the Full Bench discharged its appellate jurisdiction by granting permission to appeal and quashing the decision of Deputy President Binet. The Appellants asserted that the whole of the Respondent's application was referred to Deputy President Gostencnik to rehear and determine all questions of fact and law relevant to the Respondent's claim. The Appellants posited that it is wrong to suggest that Deputy President Gostencnik is exercising the appellate jurisdiction of the Full Bench.

[12] Therefore, the Appellants posited that it follows that the power under s.603 is not limited to circumstances where the initial decision was based on incomplete or false information, fraudulently procured or otherwise, or where there was a change in factual circumstances.

[13] Additionally, the Appellants contended that, similar to Glen Cameron, the Full Bench is not functus officio. The Appellants asserted that the appeal was not complete and needs to be completed by virtue of s.603.

[14] The Appellants asserted that, when Thiess was first before the Commission, Commissioner Roe determined that the enterprise agreement in question was incapable of approval for the following reasons: the employees who voted for the agreement were not in fact being covered by it; the group of employees covered by the agreement was not fairly chosen for the purposes of s.186(3); and there were reasonable grounds for believing that the agreement had not been genuinely agreed pursuant to s.188(c).

[15] Upon appeal to a Full Bench of the Commission, the Appellants posited that the Full Bench identified legal error in relation to the first of the bases relied upon by Commissioner Roe. Consequently, the Full Bench granted permission to appeal, upheld the appeal, quashed Commissioner Roe's decision and referred the matter for rehearing. The Appellants submitted that, in doing so, the Full Bench failed to consider the other grounds on which Commissioner Roe had determine that the agreement was incapable of approval.

[16] The Appellants noted that, upon appeal to the Federal Court, it was held:

'... The Commission, ordinarily, must decide each of such necessary matters, not just that which is identified as the decisive ground. In our view, that is precisely what the Commissioner did in this case.

In our view, for those same reasons, the Full Bench ought to have dealt with the submissions of the parties with respect to both the "fairly chosen" and "genuine agreement" grounds and it erred in law in quashing the decision of the Commissioner without considering those grounds. Compare Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 at [123].

Counsel for Thiess contended, albeit faintly, that the orders made by the Full Bench quashing the Commissioner's decision to refuse to approve the agreement and remitting the application for approval to another Commissioner, was just, as a "practical" matter. In our view, there is nothing remotely just about denying the Union the fruits of its victory given to it by the Commissioner in refusing to approve the application on the grounds that the relevant employees were not fairly chosen and that the Enterprise Agreement had not been genuinely agreed to.'[14]

[17] The Appellants contended that, consistent with Thiess, our Appeal Decision ought to have considered and determined all of the matters raised by Deputy President Binet in dismissing the Respondent's initial application for approval of the Proposed Agreement. As a result, the Appellant asserted that they were deprived of the fruits of their victory given to them by Deputy President Binet by reason of these matters not being determined by us.

[18] Accordingly, the Appellants submitted that it would be expeditious and efficient for us to revoke our Appeal Decision and determine the appeal to finality.

[19] The Respondent contended that, contrary to the Appellants' submission, Glen Cameron is not germane to the current matter. The Respondent asserted that the oversight made by the Full Bench in Glen Cameron was obvious at the time the decision was made. The Respondent posited that, by contrast, we decided the appeal before us in accordance with the law as it stood at the time. In this respect, the Respondent submitted that, whether or not the Appeal Decision is rendered erroneous in light of Thiess is a matter for judicial review, not a revocation application.

[20] The Respondent contended that the High Court decision in Esso lends no support to the Appellants' application. The Respondent asserted that the Appellants have failed to point to a single case in which s.603 (or any of its legislative predecessors) has been used in the manner in which it is now urged, that is, to 'correct' a decision on the basis of its purported inconsistency with a subsequently decided case of the Federal Court.

[21] The Respondent submitted that construing s.603 in the manner advocated for by the Appellants would bypass the confines imposed by the courts in applications for judicial review. The Respondent posited that those confines serve a gatekeeping function that is critical in preserving finality in litigation. The Respondent contended that expanding s.603 to encompass a quasi-appeal mechanism would undermine that purpose in a manner which finds no support in the text of the section or the decided cases which consider it.

Appellants' reply submissions dated 14 February 2018

[22] The Appellants submitted that the exercise of power under s.603 should not be conditioned upon the litigant seeking judicial review of a Full Bench decision. To so construe would impose an impermissible fetter on its exercise, and in effect, leave the s.603 power without utility. It was further noted that, notwithstanding the fact that an application for judicial review had been made, the Full Bench in Glen Cameron[15] proceeded to exercise its power under s.603 before the Federal Court had determined the judicial review application.

[23] Moreover, the Appellants contended that s.603 ought to be exercised in accordance with ss.577 and 578 of the Act, which requires the Commission to perform its functions in a manner that is informal, avoids unnecessary technicalities, and for the merits of the matter to be taken into account.

[24] The Appellants asserted that the s.603 power can be likened to the inherent power of a superior court of record to set aside a judgment and re-open the case, if where by no fault of the parties, the Commission has proceeded according to some misconception of law.[16] On that basis, the Appellant disputed that the Unions ought not to be deprived of those grounds to which Deputy President Binet upheld at first instance, and that the decision upholding the appeal and referring the matter to Deputy President Gostencnik be revoked pursuant to s.603.

[25] For the reasons set out below, we dismiss the respective applications for revocation of our Appeal Decision handed down on 5 July 2017.

[26] In our Appeal Decision, we granted permission to appeal, upheld the appeal, quashed the decision of Deputy President Binet and referred the matter to Deputy President Gostencnik to rehear the matter.[17]

[27] Prior to Deputy President Gostencnik hearing the matter on 16 November 2017, the Federal Court handed down the judgments in One Key Workforce and Thiess on 8 November 2017 and 9 November 2017 respectively. The Deputy President invited the parties to make submissions in relation to these two judgments by way of correspondence dated 4 December 2017. Those submissions have been filed with the Commission and, therefore, Deputy President Gostencnik has the benefit of those two judgments in determining the matter before him. Unless the Deputy President formed the view that he should otherwise stay the matter, it is properly before him and he should so decide it.

[28] The Appellants contended that the reasoning in Glen Cameron is 'germane' to the present matter. We do not agree with this submission. In Glen Cameron, the Full Bench refused permission to appeal despite there being a right of appeal under the relevant enterprise agreement. As such, the Full Bench erred on a jurisdictional basis and, therefore, considered it appropriate to revoke their decision so that the matter could be dealt with to finality. The circumstances in the case before us are clearly distinguishable to those in Glen Cameron. In our Appeal Decision, we decided the matter in accordance with the law as it stood at the time. We did not err in exercising the jurisdiction of the Commission, nor on any other basis. Therefore, we are of the view that Glen Cameron is not authority for the proposition that our Appeal Decision should be revoked as a result of the judgments subsequently handed down by the Federal Court in One Key Workforce and Thiess.

[29] We are also not satisfied that the decision in Esso relied upon by the Appellants lends any support to the contention that we should revoke our Appeal Decision. The plurality in Esso merely restated the uncontroversial proposition that the power conferred on the Commission by s.603 of the Act is one of broad scope.[18] This is not instructive that our Appeal Decision should be revoked as a result of the judgments handed down in One Key Workforce and Thiess.

[30] Additionally, the Appellants asserted that, in Rheem, Munro J endorsed the analysis of the Conciliation and Arbitration Court in Victorian Railways Commissioners that the equivalent predecessor power bestowed upon the Commissioner under s.603 of the Act was given without qualification and its exercise would ultimately hinge on the circumstances of the case. In this respect, the Appellants submitted that there is no reason to form the view that the power under s.603 should not be similarly applied. Whilst this may be the case, again, we are not persuaded that this lends any support to the Appellants' contention that we should revoke our Appeal Decision. The notion that s.603 is to be exercised based on the circumstances of the case does not assist us in determining whether our Appeal Decision should be revoked as a result of a subsequently decided Federal Court judgments.

[31] Therefore, in our view, the Appellants have not pointed to any case that would persuade us to revoke our Appeal Decision as a result of the judgments subsequently handed down by the Federal Court in One Key Workforce and Thiess.

[32] We note that the fact that One Key Workforce and Thiess were decided after we handed down our Appeal Decision should not lead to revocation as a matter of right. In this respect, we agree with the Respondent that, whether or not the Appeal Decision is rendered erroneous in light of One Key Workforce or Thiess is a matter for judicial review, not a revocation application.

[33] We also note that the Appellants contended that it would be expeditious and efficient for us to revoke our Appeal Decision and determine the appeal to finality. We do not agree with this submission, particularly given that the parties have already filed submissions and Deputy President Gostencnik has conducted the hearing. Therefore, we consider it more efficient and cost effective for the Deputy President to decide the matter to finality in accordance with our Appeal Decision. In any event, there is no prejudice to the parties by the Deputy President rehearing the matter in accordance with our Appeal Decision. The parties will have rights of appeal available to them should they be required.

[34] Accordingly, the respective applications for revocation of our Appeal Decision pursuant to s.603 of the Act are dismissed.

Appellants' reply submissions dated 14 February 2018.

[1] [2017] FWCFB 2741.

[2] [2017] FWC 852.

[3] [2016] FWCFB 3048.

[4] [2017] FCA 1266.

[5] [2017] FCAFC 179.

[6] Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2015] FWC 5161, [37]-[38] (Ross J); Asmar v Fair Work Commission [2015] 247 IR 31, [87] (Beach J).

[7] [2017] FWCFB 4636.

[8] [2003] AIRC 373.

[10] AMWU and another re Rheem - Rydalmere Plant Industrial Action Order 2002 [2003] AIRC 373, [38].

[11] [2017] HCA 54.

[12] AMWU and another re Rheem - Rydalmere Plant Industrial Action Order 2002 [2003] AIRC 373, [38].

[16] Autodesk v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, 302-303.

[17] [2017] FWCFB 2741, [57]-[60].

[18] [2017] HCA 54, [49].

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