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[2002] AIRC 281
procedural. The appeal was dismissed as incompetent for lack of standing; Manpower's application for leave to appeal under s 45 was dismissed (see [24]).
Manpower challenged certification of an enterprise agreement between Adecco and the AWU, claiming the agreement's wage structure gave Adecco a competitive advantage. The Full Bench held Manpower did not prove it was a 'person aggrieved' because it failed to produce evidence showing how the agreement actually disadvantaged its business; speculative assertions about comparative labour costs were insufficient. The appeal was therefore incompetent and leave to appeal was dismissed; the Bench also declined to rule on broader legal issues about the no-disadvantage test because the evidentiary basis was inadequate.
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On 14 August 2001 Commissioner Larkin certified the Adecco Projects/Australian Workers' Union Cirque‑Du‑Soleil Certified Agreement 2001. The agreement covered employees engaged for the Cirque‑Du‑Soleil Australian tour. After certification Adecco tendered successfully to supply labour for parts of the 2001 tour. Manpower Services (Australia) Pty Ltd, a competitor labour‑hire firm, commenced three proceedings on 4 September 2001: (1) an appeal under s 45 of the Workplace Relations Act 1996 (leave required) challenging the Commissioner's jurisdictional decision; (2) an application under s 33(a) referred under s 108 to set aside or revoke the certification; and (3) an application under s 187 to suspend or cancel the agreement (see [1]–[5], [3]).
1 cited instrument linked from this judgment.
Manpower asserted that the agreement's rates and structure produced lower labour costs than several state awards which would otherwise apply, especially concerning Sunday penalty rates, and that this gave Adecco a commercial advantage in tendering for the 2001 and expected 2003 tours (see [7], [13]–[16]). Manpower relied on comparative spreadsheets and submissions that Commissioner Larkin had applied the wrong 'relevant award' (the NSW Recreation Award) rather than other applicable state awards, and thus misapplied the Part VIE no‑disadvantage test (see [8]).
The Full Bench (Giudice P, Harrison SDP and Commissioner Hoffman) heard the appeal. The crucial procedural question was whether Manpower was a 'person aggrieved' under s 45(3)(d) and therefore competent to seek leave to appeal. The Bench concluded Manpower had not proved, on the evidence, that it was aggrieved and, accordingly, that the appeal was incompetent; it dismissed the application for leave. The Bench also indicated that, even if the appeal had been competent, it would have refused leave because the evidence was too scant to resolve the significant legal issues raised, such as the construction of 'relevant award' under ss 170X, 170XA(2) and 170XF(1) (see [11]–[12], [18]–[23], [24]).
The decision turns on standing and evidentiary sufficiency.
Approach to 'person aggrieved': The Full Bench adopted the test in Tweed Valley Fruit Processors v Ross (as explained via Ellicott J in Tooheys): a person aggrieved must show a grievance beyond that of an ordinary member of the public; this may be shown by an effect on existing or future rights or by an effect on the conduct of a business (see [11], [12]). The Bench explicitly accepted that passage as governing the enquiry (see [12]).
Insufficiency of evidence about commercial effect: Manpower alleged commercial disadvantage, but led no admissible evidence about its own corporate operations, cost base, tendering history, roster arrangements, hours worked, or the way in which labour costs feed into its bidding prices. The Bench emphasised that labour cost is only one component of price, influenced by numbers of employees, classifications and hours; without such specifics any attempt to identify the agreement's effect on Manpower's prices would be speculative (see [18]–[21]). Consequently the Bench held that an allegation that one company applies a different wage structure than another is not, by itself, enough to found the conclusion that the first company is 'aggrieved' (see [20]).
Discretion on leave to appeal: The Bench applied the established approach to leave under s 45, citing Wan v AIRC: leave requires an arguable case of appealable error, and is rarely appropriate without such a case. Although Manpower raised potentially important statutory questions about the no‑disadvantage test and relevant awards, the Bench held the factual foundation was inadequate to determine those legal issues or to show that their resolution was necessary; the parties to the agreement (Adecco and the AWU) opposed leave and the AWU maintained the agreement did not disadvantage employees (see [22]–[23]).
Thus, the combination of legal test for 'person aggrieved' and the absence of factual proof of any specific commercial prejudice led the Bench to dismiss the appeal as incompetent and to refuse leave to appeal.
Before this decision: the established approach to standing in industrial/administrative contexts was that being a 'person aggrieved' requires more than a general interest; courts had considered factors such as the impact on rights or interests of the relevant class (see Tweed Valley, AIMPE references cited in [11], [17]).
After this decision: the Full Bench reinforced that in the context of s 45(3)(d) a competitor alleging commercial disadvantage as the basis for standing must provide evidence showing how the decision practically affects its business. Mere assertion of competitive detriment via differential wage structures without supporting evidence will not satisfy standing. The decision serves as a practical reinforcement that the Commission will require an evidentiary foundation before admitting third parties to challenge certification decisions on competitive grounds.
On substantive law about the no‑disadvantage test and the construction of 'relevant award' (ss 170X, 170XA(2), 170XF(1)), the Full Bench did not lay down new law; it expressly declined to resolve those questions absent a sufficient evidentiary record (see [22], [23]). Thus legal uncertainties on the precise construction of 'relevant award' remain unresolved by this decision.
"We accept that this passage should govern our approach to the question of whether Manpower is a person aggrieved by the certification of the agreement." [12]
"We are left with a situation in which one company submits that it is aggrieved by a decision which has the effect of applying a different wage structure to another company in the same industry. We think that is an insufficient basis to found a conclusion that the first company is aggrieved." [20]
"In the circumstances and on the evidence we are not persuaded that Manpower is aggrieved for the purposes of s.45(3)(d) by the Commissioner's decision. It follows that Manpower cannot appeal against the decision." [21]
"Given the paucity of the evidence before us, however, we are unable to say with any confidence that the resolution of such questions would be necessary in order to decide the appeal." [23]
This decision is principally about standing and evidentiary prerequisites. It will be triggered where:
Practically, any third party competitor considering a jurisdictional appeal to the Full Bench should be prepared to put on evidence demonstrating the causal link between certification and its concrete commercial detriment.
This Full Bench decision is primarily procedural and fact specific: it affirms that standing under s 45(3)(d) requires evidentiary proof of a grievance beyond the ordinary public. Subsequent administrative and industrial decisions have looked to this decision for its practical insistence on evidence of competitive effect where a private commercial actor seeks to challenge certification or regulatory decisions. Where parties have produced detailed tender histories, costings, rosters, and comparative pricing demonstrating concrete loss or inability to compete, tribunals are more likely to find 'aggrievement'. Conversely, where similar challenges rest on assertion or comparisons of award clauses without business evidence, Manpower v Adecco will be cited for denial of standing.
(Users should check later authorities and appellate courts for any development on s 45 standing or on the construction of 'relevant award' in Part VIE, as this decision explicitly leaves unresolved broader statutory questions, see [23].)
Construction of 'relevant award' under s 170X and related provisions: The Bench identified potentially significant issues about which awards must be identified and designated when applying the no‑disadvantage test, but declined to decide them for lack of evidence. Those questions remain open and important for future certification disputes (see [8], [22], [23]).
The scope of 'person aggrieved' where regulatory or certification decisions affect market competition: While this decision requires evidence of concrete commercial effect, it leaves open finer questions about when a competitor's economic interest will suffice, particularly where the regulatory act has systematic industry impact. For example, could a challenger establish aggrievement through market studies, expert pricing evidence, or detailed tender comparisons? The decision suggests yes, but specifics are unresolved (see [18]–[21]).
Intervention under s 43(1): The Bench noted that had Manpower sought to appear before the Commissioner, s 43(1) would have required consideration of that application, which raises procedural questions about the preferable route for third‑party challenges, pre‑certification intervention versus post‑certification appeal (see [17]).
The interaction between the no‑disadvantage test and national versus state awards in a mobile, interstate workforce: The case exposes practical complexities in identifying applicable awards for touring enterprises such as circuses; the Bench did not resolve how the Commission should treat such multi‑jurisdictional award issues under Part VIE (see [8], [15]).
Conclusion: Manpower Services v Adecco underlines the Commission's insistence on evidentiary proof where standing is founded on competitive disadvantage. It leaves intact significant unresolved questions about the operation of the no‑disadvantage test and award designation that will require fuller factual records and argument to decide. Practitioners advising third parties should ensure documentary and witness evidence that concretely links certification to business harm if seeking to challenge certification under s 45.
s.45 appeal against decision
s.108 reference to Full Bench
s.111(1)(f) Application to set aside, revoke or vary decision
s.187 Application to cancel or suspend award or order
[1] There are three separate proceedings before the Commission initiated by Manpower Services (Australia) Pty Ltd (Manpower). Each is directed at a decision made by Commissioner Larkin on 14 August 2001 to certify an agreement known as the Adecco Projects/Australian Workers' Union Cirque-Du-Soleil Certified Agreement 2001 (the agreement) [PR907702]. As its name implies the agreement is between Adecco Projects Pty Ltd (Adecco) and The Australian Workers' Union (the AWU).
[2] The agreement applies to employees engaged or to be engaged in relation to tours of Australia by the French circus company known as Cirque-Du-Soleil_._ After the Commissioner's certification of the agreement on 14 August last year, Adecco successfully tendered for contracts to provide labour to Cirque-Du-Soleil in various States during the company's tour of Australia in 2001. The agreement will expire on 30 June 2004.
[3] The proceedings before the Commission are, firstly, an appeal pursuant to s.45 of the Workplace Relations Act 1996 (the Act), for which leave to appeal is required, against the Commissioner's decision to certify the agreement. The second proceeding is an application by Manpower that the Commission act on its own motion under s.33(a) of the Act to set aside or revoke the Commissioner's certification. That application has been referred to this Full Bench pursuant to s.108. The third application is that the Commission suspend or cancel the agreement pursuant to s.187 of the Act.
[4] All three matters were filed on 4 September 2001 and were listed for mention and programming on 20 September 2001. Directions were issued on 5 October 2001 and the matters came on for hearing on 5 November 2001. At that time Manpower sought an adjournment which we granted. We offered to sit on 16 November 2001 but Adecco's counsel was unavailable on that date. The matters were eventually heard on 30 January and 1 March 2002.
[5] Mr Harmer appeared for Manpower and Mr Moses for Adecco. At the commencement of the hearing on 30 January Mr Harmer asked that we defer any consideration of the applications relating to s.111(1)(f) and s.187 pending our decision in the appeal. There was no objection to that course and we shall adopt it. He then made submissions on the appeal, including submissions as to why leave should be granted.
1. Manpower and Adecco are competitors in a market for the supply of personnel to assist various businesses across Australian industry.
2. The industry is extremely competitive, and very price sensitive.
3. Cirque-Du-Soleil is an international touring acrobatic circus. Cirque-Du-Soleil employ the cast and crew of the tour.
4. Adecco secured contracts from Cirque-Du-Soleil for the Brisbane, Adelaide and Perth stages of the tour which involved performances between August and December 2001.
5. The performance schedule for the Brisbane tour is typical of the requirements of Cirque-Du-Soleil. Sunday is an important day with two performances and a requirement for approximately half the casual employees to work 8 hours across the two performances.
6. Cirque-Du-Soleil is to tour Australia again in 2003.
[7] Manpower submitted that the rates and conditions in the agreement are lower than the applicable award rates in a number of States. It has instituted these proceedings because it is concerned that if the agreement remains in force Adecco will be in a position to tender for the provision of labour to Cirque-Du-Soleil during its 2003 tour on a lower labour cost than it, Manpower, can. Whilst Manpower does not conceal its commercial interest in having the agreement quashed, it relies squarely on what it submits are serious deficiencies in the certification process.
[8] It should be made clear by way of background that the Commission is not to certify an agreement unless the agreement passes the no-disadvantage test or, although it does not pass the no-disadvantage test, the Commission is satisfied that certifying the agreement is not contrary to the public interest: s.170LT(2) and (3). The no-disadvantage test is found in Part VIE of the Act. At the hearing of the application to certify the agreement Adecco and the AWU submitted to the Commissioner that the only relevant award for the purpose of the application of the no-disadvantage test was the Theatrical Employees Recreation and Leisure Industry (State) Award 2000 (the NSW Recreation Award). Manpower submitted to us that this was incorrect and that the NSW Recreation Award does not apply to employees in circuses but that the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Consolidated Award does. It further submited that in a number of the States there are State awards which apply to employees in circuses. For those reasons the Commissioner made fundamental jurisdictional errors in applying the no-disadvantage test. It submitted in particular that the Commissioner failed to identify all of the relevant awards within the meaning of the term "relevant award" in s.170X of the Act and failed to designate appropriate awards in certain States and Territories pursuant to s.170XF(1) and accordingly did not properly apply the no-disadvantage test. It submitted that there are a number of respects in which the rates, including penalty rates, to be found in the agreement are below those found in relevant State awards which would otherwise have application to the work to be performed under the agreement. It provided us with spreadsheets which set out the various State award provisions, the provisions of the agreement and wage calculations based on each. None of that material was produced before the Commissioner. Manpower's case is in substance that if the relevant awards had been identified the agreement would not have passed the no-disadvantage test and would not have been certified.
[9] Mr Harmer's final submission was that Manpower has standing to appeal pursuant to s.45(3)(d), being a person aggrieved by the certification of the agreement. We shall deal with that issue first.
[10] Manpower seeks to appeal pursuant to s.45(1)(g) of the Act. That section provides:
"(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:
(g) a decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction, in a matter arising under this Act.'
Section 45(3) deals with who may institute an appeal. It is common ground that an appeal pursuant to s.45(1)(g) may only be instituted by an organisation or person of the kind prescribed in s.45(3)(d), namely:
"an organisation or person aggrieved by the decision or act concerned."
[11] In the circumstances of this case the competency of the appeal rests upon whether Manpower is "aggrieved" by the certification of the agreement. Mr Harmer submits that the following passage from the judgement of Wilcox CJ and Marshall J of the Industrial Relations Court of Australia in Tweed Valley Fruit Processors Pty Ltd v Ross and Ors (1996) 65 IR 393 describes the proper approach to the construction of the term "person aggrieved".
"In Tooheys Limited v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421, Ellicott J (at 437) interpreted the description "a person who is aggrieved" in s 5 of the Administrative Decisions (Judicial Review) Act as extending, at least, to "a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public". He went on to say (at 437-438) that, in many cases, that grievance will be shown because the decision affects his or her existing or future rights but in other cases it may be less direct; it "may affect him or her in the conduct of a business or ... affect his or her rights against third parties."" IR at 415.
[12] We accept that this passage should govern our approach to the question of whether Manpower is a person aggrieved by the certification of the agreement. We shall return to the application of the passage after setting out the relevant circumstances.
[13] We were told by Mr Harmer that prior to September 2001 Manpower had successfully tendered for contracts to supply labour to Cirque-Du-Soleil in Australia. He alleged, however, that from the time the agreement commenced to operate (in August 2001) Manpower was unable to bid against Adecco on a competitive basis for the provision of labour. The immediate effect was that Manpower was unable to mount a competitive bid for the provision of labour to Cirque du Soleil during the remainder of the 2001 tour. Mr Harmer told us that in addition Manpower will be unable to mount a competitive bid for the provision of labour to Cirque du Soleil for the 2003 tour. These statements were based on material to which we have already referred. That material indicates that the rates, including penalty rates, in the agreement are inferior in significant respects to the rates prescribed in a number of state awards which would apply to the employees in question in the absence of the agreement. A document was tendered comparing the rates payable to certain classifications of employees under the terms of the agreement with the equivalent rates under the terms of the various state awards to which it was submitted the Commissioner should have had regard.
[14] Mr Moses, appearing on behalf of Adecco, pointed out with some vigour that Manpower has not sought to support its claim that it is aggrieved with evidence - the whole of the case having been put from the bar table. In our view this is not a mere debating point but a point of substance. Moreover it was put a number of times during Mr Harmer's submissions. Mr Harmer was put on notice that the lack of formal evidence would be relied upon in the submissions Mr Moses was to put on behalf of Adecco.
[15] The uncontested facts are limited. The agreed facts disclose that Manpower and Adecco are competitors in the relevant market which is extremely competitive and price sensitive. The agreement was certified on 14 August 2001 and its terms were incorporated in Adecco's subsequent bids for supply of labour to Cirque du Soleil's 2001 Tour. The bids for the Brisbane, Adelaide and Perth stages of the tour were successful. Manpower did not tender for those stages of the tour, although it is accepted that Manpower had successfully tendered for at least one earlier stage. The terms of the agreement and the terms of the awards which Manpower submits the Commissioner should have applied are before us. There are significant differences in the structure of the rates. The most significant is that the rates in the agreement are based on the concept of an hourly rate for work performed regardless of the time of the day or the day of the week. Each of the awards, on the other hand, provides that work performed on Sunday shall be paid at double time. For that reason remuneration for Sunday work is much higher under those awards than under the agreement. Depending upon the hours worked by a particular employee, and in particular the number of hours worked on Sundays, remuneration may be significantly higher under the awards than under the agreement. The extent of the difference also varies award by award because of differences in base rates. Although it was agreed that typically half the casual staff work for 8 hours on Sundays, there was no other evidence about work patterns or rosters.
[16] Manpower submitted that we can, and should, find that it is aggrieved by the decision to certify. It submitted that it is put at a commercial disadvantage by the agreement and to use the words of Ellicott J cited in Tweed Valley, it is affected in the "conduct of [its] business". This submission is based not only upon what Manpower submitted was the effect of the agreement upon its competitive position in relation to the Brisbane, Adelaide and Perth stages of the 2001 tour, but also upon its concern that it will be unable to compete effectively for the supply of labour to Cirque-Du-Soleil during the 2003 tour.
[17] Before dealing with that issue it is necessary to return to Tweed Valley. It is instructive to consider another decision referred to by Wilcox CJ and Marshall J: Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124; 18 IR 431. In that case Gummow J found that a registered organisation with members serving in ships of a particular kind had standing to seek reasons for a manning notice given by the Secretary of the Department of Transport in relation to ships of that kind. It can be seen that in such a case the act in question, the manning notice, had a direct effect upon the employment of persons within the class whose industrial interests the organisation was formed to represent. In Tweed Valley itself, Wilcox CJ and Marshall J, in a passage with which the other member of the Court, Moore J, agreed, found that the registered organisation was a person aggrieved because it was in a similar position to AIMPE in the case just mentioned. Their Honours said:
"The decision of Commissioner Redmond did not affect AFME/PKIU's legal interests. But the union had an interest in the decision beyond that of an ordinary member of the public. Its position was much like that of AIMPE in the case heard by Gummow J: it was concerned with the maintenance of members' conditions of employment, it had participated in the decision complained of by making submissions (pursuant to a statutory right: see s 170NB(2) of the Industrial Relations Act_) and the decision was one containing potential for industrial disputation."_ 65 IR at 415
It is clear in this case that Manpower did not appear in the proceedings before Commissioner Larkin. (Had it applied to do so the Commissioner would have been required to consider that application pursuant to s.43(1) of the Act and permit Manpower to intervene if she formed the opinion that it should be heard. The application of that section, however, raises related but different issues). Furthermore the decision to certify did not directly affect Manpower's legal rights past or future because nothing in the decision to certify or in the agreement itself bound Manpower. The question remains whether Manpower had an interest of a kind sufficient to attract the statutory description.
[18] The first observation we make is that Manpower declined to call any evidence as to its interest. The only proven facts before us are those set out earlier. We know nothing of the corporate structure of Manpower, its method of operation or its costs, other than what may be surmised from the award conditions. We know nothing of the basis on which it has tendered for the provision of labour to Cirque-Du-Soleil in the past. We only know the terms of the relevant awards.
[19] While information is lacking concerning Manpower's operations Adecco, as it was entitled to do, has declined to put on any evidence about its operations. We are unable to make any meaningful evaluation of the business of either company from the relevant point of view.
[20] We are left with a situation in which one company submits that it is aggrieved by a decision which has the effect of applying a different wage structure to another company in the same industry. We think that is an insufficient basis to found a conclusion that the first company is aggrieved. As a matter of common experience labour costs, being a component of total costs, affect the price of goods or services in some way. But on the evidence before us any attempt to identify the effect of the agreement upon the price charged by Adecco for its services and to compare that with the price charged by Manpower for its services would be speculation. We mention one matter only: labour costs are a function not only of legislated rates and conditions but also of the number of persons employed in each of the relevant classifications and the arrangement and number of the hours which each employee works.
[21] In the circumstances and on the evidence we are not persuaded that Manpower is aggrieved for the purposes of s.45(3)(d) by the Commissioner's decision. It follows that Manpower cannot appeal against the decision.
[22] The grounds of appeal were fully argued before us and in those circumstances we think it is appropriate to make some comments concerning the question of whether, if the appeal were competent, we would have granted leave to appeal. A Full Court of the Federal Court recently considered the grounds which might justify granting leave to appeal in Wan v Australian Industrial Relations Commission (2001) FCA 1803 at [30]:
"30 Section 45http://www.austlii.edu.au/au/legis/cth/consol\_act/wra1996220/[s45.html](../../wrasections/s45.html) does not specify grounds for granting leave to appeal other than in the special case referred to in s.45(2). As we have previously observed, grounds traditionally adopted in granting leave have included considerations such as whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice may result if leave is refused. These "grounds" should not be seen as fetters upon the broad discretion conferred by s.45(1), but as examples of circumstances which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error."
[23] We note that the Court referred to the broad discretion conferred by s.45(1). If leave were granted in this case a number of very important questions might arise concerning the application of the no-disadvantage test and in particular the construction of the definition of "relevant award" in s.170X and the constructions of s.170XA(2) and s.170XF(1). The answer to those questions would be of significance in many of the large number of applications to certify agreements with which the Commission deals. Given the paucity of the evidence before us, however, we are unable to say with any confidence that the resolution of such questions would be necessary in order to decide the appeal. Apart from the established facts which we have already set out, the argument before us proceeded by reference to propositions alleged by Manpower to be factual but which Adecco and/or the AWU denied. The material before us does not provide a satisfactory evidentiary foundation for a proper examination of the important legal questions which might arise concerning the operation of the no-disadvantage test provisions. It is also important that the parties to the agreement, Adecco and the AWU, submitted that leave ought not be granted to appeal and that the AWU submitted that the relevant employees have not been disadvantaged by the agreement. Even if Manpower were a person aggrieved, we would decline to grant leave to appeal.
[24] The appeal being incompetent, the application for leave to appeal is dismissed.
M Harmer with S Boatswain and K McDewitt for Manpower Services (Australia) Pty Ltd.
A Moses of counsel with C McArdle, solicitor, for Adecco Projects Pty Ltd.
G Beard and M Taylor for the Australian Workers' Union.
Printed by authority of the Commonwealth Government Printer
Manpower Services (Australia) Pty Ltd re the Australian Workers' Union
Adecco Projects Pty Ltd re Adecco Projects/Australian Workers Union 'Cirque - PR914477 [2002] AIRC 281;
(1986) 13 FCR 124
(1996) 65 IR 393
The appeal was dismissed as incompetent for lack of standing; Manpower's application for leave to appeal under s 45 was dismissed (see [24]).