Fair Work Act 2009

s.604 Appeal of decisions

Appeal against decision [2018] FWC 3282 of Commissioner Booth at Brisbane on 5 June 2018 in matter number C2018/2204

[1] James Cook University has lodged an appeal under s 604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision issued by Commissioner Booth on 5 June 2018[1] (Decision) made in the exercise of dispute resolution powers conferred upon the Commission by cl 44 of the James Cook University Enterprise Agreement 2016 (Agreement).[2] The Decision dealt initially with a jurisdictional objection raised by the University, namely that the National Tertiary Education Industry Union (NTEU) had no standing to bring the dispute before the Commission because it had not been appointed as the representative of any employee the subject of the dispute and, accordingly, that the Commission had no jurisdiction to deal with the dispute. The Decision then dealt with the merits of the dispute, and the Commissioner made what may be characterised as a recommendation (although not expressly described as such) to resolve it. The Commissioner granted liberty to apply in the event that the recommendation did not resolve the matter. The University contends that the Commissioner erred in determining, contrary to its submissions before her, that the Commission had jurisdiction to deal with the matter.

[2] A brief description of the factual background of the matter is necessary. On 17 April 2018 the University held meetings individually with a number of its employees to advise them that their jobs were at risk of being made redundant as a result of a "change proposal" which the University intended to promulgate pursuant to cl 42.1(b) of the Agreement. Three of the employees who were required to attend the meetings were represented by an official of the NTEU. The formal change proposal was published the following day, 18 April 2018, and proposed the cessation of certain programs and services and that a number of positions be made redundant as a consequence.

[3] In correspondence dated 19 April 2018, the NTEU notified the University of the existence of a dispute pursuant to cl 44 of the Agreement. It contended that the change proposal published the previous day did not comply with the requirements of cl 42.1(b)(ii) of the Agreement in that it failed to identify what work would no longer be done and/or what work would be transferred to other employees, and also failed to include the University's reasons for the changes proposed. The NTEU sought a meeting to discuss these issues, and also the preservation of the status quo pursuant to cl 44(h) of the Agreement. The NTEU's correspondence did not assert that it represented any named employee or any identified class of employees.

[4] The University replied to this correspondence the following day, 20 April 2018. It denied that the change proposal did not comply with cl 42.1(b)(ii), took issue with certain public statements the NTEU had made, invited the NTEU to withdraw the dispute, and said that no meeting was required. However it indicated that it was prepared to discuss "these matters" on an identified date. The University did not contend in its letter that the NTEU had no capacity to notify a dispute pursuant to cl 44 of the Agreement on the basis that it had not been authorised to represent any employees the subject of the dispute or had not identified the employees it represented.

[5] On 23 April 2018 there was a telephone conference involving representatives of the University and the NTEU to discuss the dispute, but it was not resolved. On 24 April 2018 the NTEU sent an email to the University containing a proposal for the resolution of the dispute, but this was rejected in correspondence from the University dated 25 April 2018. In the latter correspondence the University challenged whether the NTEU was acting in good faith and genuinely in pursuing the dispute, and again invited the NTEU to withdraw it. Neither at the telephone conference nor in its correspondence of 25 April 2018 did the University challenge the capacity of the NTEU to pursue the dispute on the basis that it had not been authorised to represent any employees the subject of the dispute or had not identified them.

[6] On 26 April 2018 the NTEU lodged an application for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Agreement. In broad terms, the application identified the subject matter of the dispute as being a failure to provide information in the change proposal that was required by cl 42.1(b)(ii). The application did not identify that the NTEU represented any particular employees by name or class (noting that the Commission's standard form F10 does not in terms require employees to be identified in this way, although it does ask for information about what steps have been taken to resolve the dispute under the dispute settlement procedure).

[7] After the NTEU lodged its application, the University sent correspondence to the Commission on 10 May 2018 which stated, among other things, that "no individual NTEU member (or group of members) has been identified on whose behalf the dispute has been raised". There was a conference in relation to the matter before the Commissioner on 10 May 2018, at which the University foreshadowed a jurisdictional objection to the capacity of the NTEU to bring the dispute before the Commission. In an outline of submissions filed on 16 May 2018, the NTEU responded to the jurisdictional objection by submitting that:

• it was able to bring a dispute before the Commission in relation to the proper application of the Agreement in its own right;

• alternatively, the NTEU was representing affected staff members, as the University was "well aware" as a result of its attendance as a representative of affected staff at the meetings on 17 April 2018.

[8] In an outline of submissions filed on 22 May 2018, the University among other things advanced its jurisdictional objection to the NTEU's application on the basis that the NTEU was not permitted to bring an application in its own right, and was not acting as a representative of any of the University's employees in the dispute. The latter proposition was crystallised in the following proposition contained in the University's outline of submissions:

"In circumstances where the NTEU is invoking the jurisdiction of the Commission under section 739 of the Act but is refusing to provide any substantive information to explain how it has been appointed as a representative for this dispute as required by clause 44(c) of the Agreement, the Commission should find that the NTEU has not been so appointed and that there is therefore no valid dispute before the Commission."

[9] There was a hearing before the Commissioner on 24 May 2018, at which the jurisdictional issue as well as the substantive issues in dispute were dealt with. At this hearing, the NTEU abandoned the proposition that it was entitled to bring a dispute in its own right, and contended that it brought the dispute as a representative of affected staff. Accordingly only the second limb of the University's jurisdictional objection was required to be dealt with.

[10] After the Decision was issued, consultation occurred in relation to the change proposal from 6-22 June 2018. On 6 July 2018 the University issued its "change plan", which is now in the process of implementation.

[11] The dispute resolution procedure in the Agreement is contained in cl 44, which in its entirety provides:

(a) If a dispute relates to a matter under this Agreement, or the NES, the parties to the dispute must first attempt to resolve the matter at the workplace level by discussions between the Staff Member or Staff Members concerned and the relevant line manager within ten working days.

(b) A dispute may be raised by a Staff Member or their representative (as defined in Clause 9), with Director HRM who will attempt to resolve the issues with the parties to the dispute.

(c) The University or a Staff Member who is a party to the dispute may appoint another person, organisation or association to accompany and/or represent them for the purposes of this term.

(d) The parties to the dispute will endeavour to resolve the dispute in a timely manner either through discussions with more senior levels of management where appropriate or through alternative dispute resolution methods.

(e) If discussions at the workplace level do not resolve the dispute, and appropriate steps have been taken, a party to the dispute may refer the matter to the Fair Work Commission.

(f) The Fair Work Commission may deal with the dispute in 2 stages:

(i) The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(ii) If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

2. make a determination that is binding on the parties.

(g) Resolution of disputes is to occur in good faith by following the same principles as the good faith bargaining requirements in section 228 of the Fair Work Act 2009.

(h) While the parties are trying to resolve the dispute using the procedures in this clause:

(i) A Staff Member must continue to perform their work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(iii) No industrial action shall be taken by any party to the dispute or to the Agreement;

(iv) The University shall not change work, staffing or the organisation of work if such is the subject of the dispute, or take any action likely to exacerbate the dispute.

(i) The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.

[12] Clause 9 is relevant to the issue of workplace representation. It provides:

(a) The University recognises that Staff may be assisted, accompanied and supported by a representative that may be:

(ii) A delegate or Staff Member of a union that negotiated this Agreement; and

(b) Staff will inform their Supervisor and/or relevant level of management that they will be represented prior to any discussions.

[13] Clause 42.1 deals with workplace change and change proposals, and relevantly provides:

Where the University proposes to introduce changes that are likely to have a significant effect on Staff the following process will be observed:

(i) Where the University, through the Head of the Work Unit, has made a decision to consider change which is likely to lead to the development of a formal change proposal, where practical the Head of the Work Unit will undertake informal discussions with directly affected Staff.

(ii) Any informal discussions will involve all Staff that will be directly affected by the change.

(iii) The JCC will be advised when informal consultation is occurring.

(iv) Directly affected Staff includes all Staff that hold a substantive position in the work area that is affected by the change. This includes Staff on secondment or approved leave.

(v) The formal change process in Clause 42.1(b) will not apply where there are no significant effects on Staff and where all Staff Members in a work area who are directly affected by the change have been involved in the consideration of the change and those Staff Members agree with the proposed change.

(vi) If affected Staff Members or their representative as defined in Clause 9, advise the University that they do not agree with the proposed change, then the formal change process will commence.

(i) The University will develop a formal change proposal where change is likely to have a 'Significant effect on Staff as it is likely to lead to one or more of the following:

2. Major change in the composition, operation or size of the workforce, or the skills required by Staff;

(ii) Where there is a specific change proposal, the University will issue documentation to directly affected Staff and where they choose, their representative where nominated as defined in Clause 9, outlining the change. The documentation will include:

1. The extent and nature of the change proposed, including where possible identifying what work is no longer to be done by anyone and what work will be transferred to other Staff;

2. The impact of the change on casual Staffing; and

(iii) In the process of this consultation, the University is not required to disclose "commercial in confidence" information to the relevant Staff or their representative where nominated as defined in Clause 9.

(iv) Following consultation with affected Staff, and representative as defined in Clause 9, the University will circulate the change proposal to members of the JCC.

(i) The University will consult with Staff Members as groups and together with their representatives as defined in Clause 9 where nominated, in relation to the specific change proposal.

(vi) Following consultation the University will prepare a Change Plan, which reflects its decision, taking into account issues and suggestions raised during consultation and the implementation plan it proposes. The Change Plan will include a response to the issues and suggestions raised during consultation and will where possible identify what work is no longer to be done by anyone and what work will be assumed or transferred to other Staff.

(ix) The Change Plan will be provided to affected Staff, their representatives as defined in Clause 9 where nominated, and the JCC.

[14] In dealing with the University's jurisdictional objection, the Commissioner first made the following factual findings:

"[20] It is agreed that NTEU did represent at least one employee during the dispute before the application. In addition, the NTEU has sought to resolve the issues as a representative as indicated in the statements of the NTEU witnesses."

[15] The Commissioner then determined the jurisdictional objection in the following terms (footnote omitted):

"[25] Is it sufficient for the NTEU when bringing a dispute concerning clause 42.1(b)(ii), in particular sub-clauses A and D to identify the class of employees the subject of the dispute, or is it necessary to identify directly affected staff in order to enable the employer to understand the case it has to meet?

[26] Both the NTEU and the University properly identify that any dispute must comply with the clause 44 being the dispute resolution clause in the enterprise agreement.

[27] Clause 44(b) provides that a dispute may be raised by a representative.

[28] Clause 9 then recognises that staff may be supported by our various types of representatives.

[29] That recognition of the representatives occurred in April 2018 during discussions which included specifically raising the issues that are now in dispute. Ms Pope noting in oral evidence that NTEU had been asked to go to meetings.

[30] I also consider that the NTEU can properly rely, in these circumstances, on the decision in Asciano[3] in that it has properly identified that it represents a class of employees, being those that are affected by the change management proposal. It follows that I do not agree with the University submissions that it cannot understand the case it has to meet without names and circumstances of employees said to be represented.

[31] While this may be the case in some matters, the issues that are in dispute are only within the knowledge of the employer. Having identified the class of persons being those the subject of the change management proposal, only the University who can identify the extent and nature of the change proposed.

[32] Given that a dispute may be raised by a representative under clause 44(b), I conclude that the NTEU had been and continued to represent staff in the change process. It is clear from the evidence that the University was aware of the representation. The mere fact that at some discussions staff were not represented but attended only in person cannot be taken to mean the staff member no longer wished to be represented. On that basis the NTEU was a representative for the purposes of clause 9.

[16] The University submitted that:

• the expression "parties to the dispute" used in cl 44 of the Agreement did not refer to a union, and the NTEU was incapable of bringing a dispute in its own right under the clause;

• only the University and relevantly-affected employees could be "parties to the dispute" for the purpose of cl 44;

• clause 44 allowed for the representation of employees, but in order for a representative to be able to raise a dispute under cl 44(b), the representative had to be authorised by the employee(s) the subject of the dispute under cl 44(c);

• likewise under cl 42, a union could only act as a representative of affected employees, as demonstrated by the references to a "a representative where nominated as defined in Clause 9" in cll 42.1(b)(ii) and (iii) and cl 42 (c)(i);

• although the NTEU represented three employees at meetings on 17 April 2018, that representation could not have concerned the change proposal, which was not published until the following day;

• the Commissioner erred in finding in paragraph [32] of the Decision that because the NTEU had apparently been authorised to represent three employees on 17 April 2018, it was thereby conferred with general authority to raise a dispute in the absence of any evidence of this;

• the dispute raised by the NTEU was never articulated as one raised on behalf of any employees, and was specifically concerned with the content of the change proposals published on 18 April 2018;

• the Full Bench decision in Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National[4] (Asciano) was not authority for the proposition that a mere assertion by a union that it was acting in a representative capacity was sufficient in circumstances where it had not in fact been authorised to do so by relevant employees, and the Commissioner erred in acting on a contrary basis;

• the Commissioner failed to provide any or adequate reasons for the conclusions stated in the Decision;

• the Commissioner erred in finding that it was agreed that the NTEU represented at least one employee during the dispute; and

• the Commissioner erred in determining that the Commission had jurisdiction in relation to the dispute in the absence of sufficient evidence that would allow the Commissioner to so determine and be satisfied of those matters.

[17] The University submitted that permission to appeal should be granted because of the nature of the errors it had identified and because the issues it raised were of importance and general application. It sought that the appeal be upheld and the Decision quashed.

[18] The NTEU submitted that permission to appeal should be refused, or alternatively that the appeal be dismissed, because:

• the dispute the subject of the proceedings before the Commissioner had been resolved, so that there was no utility in the appeal;

• the appeal only challenged the threshold issue of jurisdiction and did not concern the conclusions stated in the Decision concerning the substantive issues;

• the Commissioner did not misconstrue cl 44(b) as claimed, but in fact proceeded on the basis that a representative required authorisation under cl 44(c) in order to be able to raise a dispute under cl 44(c), and concluded on the evidence before her that the NTEU had been acting as a representative of employees;

• the Commissioner did not rely upon Asciano in the way claimed by the University, but referred to it only as an example of where the Commission had decided that the identification of a class of employees was a sufficient means of describing the employees who were parties to the dispute, and it was not necessary to individually name them;

• the reasons in the Decision were adequate;

• the Commissioner was correct in determining that it was agreed that the NTEU represented at least one employee in the dispute, since this had been conceded by the University's witness Ms Belinda Pope on the basis that she participated in a meeting with an employee that was attended by a NTEU official as the employee's representative; and

• the Commissioner had before her sufficient evidence to determine that there was jurisdiction to deal with the dispute.

[19] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[5] Generally an appeal is not as of right and may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so'. Permission to appeal may otherwise be granted on discretionary grounds.

[20] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[6] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[7] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[8]

[21] Other than the special case in s 604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[9]

[22] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[10] However, as earlier stated the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[23] We have decided to refuse permission to appeal, for the following three reasons. First, the appeal has no practical utility. We are satisfied that the dispute concerning the content of the change proposal issued on 18 April 2018 has been resolved, and that the change process initiated by the University pursuant to cl 42 of the Agreement has now proceeded past the change proposal stage in cl 42.1(b), with consultation pursuant to cl 42.1(c)(i) having been completed and with the change plan required by cl 42.1(c)(vi) having been issued and in the process of implementation. The undertaking proffered by the NTEU at the appeal hearing that it will now discontinue the dispute proceedings before the Commissioner is noted. There is no challenge in the appeal to the substantive outcome recommended by the Commissioner in the Decision, and there is no indication that the University is even dissatisfied with it. 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.[11]

[24] Second, no issue of the correct interpretation of the Agreement arises as contended by the University. As earlier stated, the NTEU abandoned its contention that it was entitled to raise a dispute in its own right under cl 44(b), and this was noted by the Commissioner at paragraphs [7]-[8] of the Decision. The Commissioner's consideration of the University's jurisdictional objection makes it plain, we consider, that the premise was that the NTEU could only raise a dispute under cl 44(b) in the capacity of a representative of affected employees. No issue was taken with that premise by the NTEU in the appeal, which accepted that in order to raise a dispute under cl 44(b) and bring it before the Commission pursuant to cl 44(e), it had to be appointed as a representative by an affected employee or employees under cl 44(c).[12] The University properly accepted that the means by which such an appointment could occur may be diverse and need not be attended by technical formality (although it did not accept that a bare assertion by the NTEU that it is acting in a representative capacity would itself be sufficient to establish that fact).

[25] Third, we consider it to have been reasonably open to the Commissioner to conclude, as she did at paragraphs [29] and [32] of the Decision, that the uncontested fact that the NTEU represented a number of individual employees at the meetings which occurred on 17 April 2018 demonstrated that the NTEU had been authorised at least by those employees to act as their representative in relation to the dispute which the NTEU raised on 19 April 2018 and subsequently brought before the Commission. The University properly conceded that the attendance of a NTEU official as representative of particular employees at the meetings on 17 April 2018 was evidence of authorisation under cl 44(c) for the purpose of what was discussed at those meetings, but contended that this was distinct from the subject matter of the dispute subsequently raised by the NTEU concerning the change proposal published on 18 April 2018. In substance, the University submitted that this dispute was a separate matter requiring separate authorisation under cl 44(c).

[26] We do not accept this submission. As earlier explained, the purpose of the meetings on 18 April 2018 was to advise employees that they were at risk of redundancy arising from a pending change proposal. The change proposal the subject of the discussions was issued the very next day, and the NTEU's complaint in the dispute raised the day after that was that the proposal did not give all the information required by cl 42.1(b)(ii). Clause 42.1(b)(ii) required that the prescribed information be given to "directly affected staff", which in the case of a change proposal involving redundancies would clearly refer to or include those employees whose jobs were at risk of being made redundant - that is, the employees who attended the meetings on 17 April 2018, some of whom were represented by the NTEU. Indeed, it can reasonably be inferred that the meetings on 17 April 2018 were conducted by the University pursuant to the requirements of cl 42.1(a).

[27] In those circumstances we consider the distinction sought to be drawn between the meetings on 17 April 2018 and the dispute raised by the NTEU on 19 April 2018 is artificial. The dispute arose directly from the potential redundancies notified on 17 April 2018. There is no reason to consider that those employees who evidently authorised the NTEU to act on their behalf on 17 April 2018 did not do so generally in relation to the change process which was initiated on that day. Indeed cl 42, by its references to the involvement at each stage of the change process of employees' representatives (at cll 42.1(a)(vi), 42.1(b)(ii), (iii) and (iv), and 42.1(c)(i),(vi) and (ix)), clearly contemplates a continuous course of representation throughout the process. This would be sufficient to encompass the dispute concerning compliance with cl 42.1(b)(ii) raised by the NTEU.

[28] For completeness, we note that the University accepted that the attendance of a NTEU official in the company of three of the relevant employees at the meetings on 17 April 2018 would be sufficient to constitute notification of representation of those three employees for the purpose of cl 9(b), at least in relation to the matters discussed in those meetings. Because we consider that, on the facts here, the NTEU's representation of particular employees on 17 April 2018 related to the change process in its entirety (in the absence of any evidence to the contrary), no issue of compliance with cl 9(b) arises in this appeal. That further makes it unnecessary to consider whether compliance with cl 9(b) is a condition precedent of an authorised representative raising a dispute pursuant to cl 44(b).

[29] For the reasons given, permission to appeal is refused.

Y. Shariff of counsel on behalf of James Cook University

Y. Bakri of counsel on behalf of the National Tertiary Education Industry Union

[1] [2018] FWC 3282

[3] Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd T/A Pacific National [2017] FWCFB 1702

[5] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[6] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [216] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44] - [46]

[7] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

[8] [2010] FWAFB 5343, 197 IR 266 at [27]

[9] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481

[10] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]

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

[12] However note Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146 at [65]- [69]

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