Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against an interim decision [2017] FWC 7040 of Commissioner Harper-Greenwell at Melbourne on 22 December 2017 in matter AG2016/3814.

[1] Mr Joshua Findley (the Appellant) has applied for permission to appeal and appealed an interim decision of Commissioner Harper-Greenwell issued on 22 December 2017 in which the Commissioner declined to make an order for the production of documents (the Interim Decision).[1]

[2] Mr Findley's application was made pursuant to s.590(2)(c) of the Fair Work Act 2009 (Cth) (FW Act) and he sought production of the following documents:

'1. The contract services agreement between MSS Security and Deakin University.

2. Any document (electronic or otherwise) that mentions a payment or benefit of any kind from MSS Security, its employees or affiliates, to United Voice, its employees or affiliates, sent or received between 1 January 2010 to the current date.

a. This includes making payment to any third party to the same effect.

b. Any payment from an MSS employee to United Voice between the amounts of $1 and $70 is not to be included.

3. All financial records, bank statements and receipts that show payment from MSS Security, its employees or affiliates, to United Voice, its employees or affiliates between 1 January 2010 to the current date.

a. This includes making payment to any third party to the same effect.

b. Any payment from an MSS employee to United Voice between the amounts of $1 and $70 is not to be included.'

[3] The application for the production of documents was made in relation to Mr Findley's substantive application to terminate the MSS Security Victorian Enterprise Agreement 2011 (the 2011 MSS Agreement), pursuant to s.225 of the FW Act. The circumstances in which the Commission must grant a s.225 application are set out in s.226:

'226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.'

[4] In support of his substantive application to terminate the 2011 MSS Agreement, Mr Findley asserts that:

(i) the terms and conditions in the 2011 MSS Agreement were "clearly worse than" the applicable award;[2]

(ii) United Voice was opposing the termination of the 2011 MSS Agreement[3]; and

(iii) the only reason for United Voice opposing the termination was because it was in receipt of corrupt payments from MSS Security[4].

[5] It is plain from the Interim Decision that the Commissioner was of the view that the substantive application could be determined on the basis of a comparison of the terms of the 2011 MSS Agreement and the relevant award and the views of the respective parties. On that basis the Commissioner was of the view that the documents sought were not relevant and did not grant the application.

[6] An appeal under s.604 is 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] There is no right to appeal and an appeal may only be made with the permission of the Commission. The matter was listed for hearing in respect of the merits of the appeal.

[7] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so'. 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[7], or a preference for a different result.[8] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

'... the public interest might be attracted where a matter raises issue 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...'[9]

[8] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be 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.[10] 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.[11] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[12]

[9] The Interim Decision is an interlocutory or procedural decision. The characterisation of the decision is relevant to the determination of permission to appeal. Courts and tribunals have generally discouraged interlocutory appeals on the basis that they may prolong the proceedings and increase costs.[13]

[10] The Appeal is brought by Mr Findley against the Interim Decision not to grant his application for orders to produce documents in respect of categories 2 and 3 of the application. There is no challenge to the Commissioner's decision to refuse to issue an order to produce in respect of the first category of documents.

[11] The Appellant advances the following grounds of appeal:

1. The Commissioner acted upon a wrong principle.
   • (a) The Commissioner said that she was "of the view that the documents sought are not relevant to the matters [she is] required to consider under section 226 of the Act".
   • (b) FW Act s 226(b) states that the view of the Union and their circumstances must be taken into account.
   • (c) Watson VP in Pinarello Blues Pty Ltd [2015] FWCA 7698 [98] said that "The Section 226(b) requirement to take into account the views and circumstances of the parties involves far more than the expression of their views in support or opposition to termination. It should involve a consideration of the reasons for their views and the validity of the concerns" (emphasis added).
   • (d) It follows that if United Voice are forming their view as a result of receiving corrupting benefits, it is relevant and should be a consideration in the substantive application.

1. The Commissioner allowed extraneous and irrelevant matters to guide or affect her.

• (a) The Commissioner accepted a submission that Cribb C had already dealt with the matter and that the Applicant is trying to have a "second bite at the cherry": at [33].
  • (b) Cribb C said the documents were relevant to the s 185 application. That was a different matter, and its relevance was made under a different statutory regime. Cribb C ensured the wording was changed to exclude the relevant documents: [2016] FWC 8154 [18] & [87]. What occurred in that application is not relevant to this application, save highlighting how a change of wording will conceal corrupting benefits.
  • (c) The Applicant made the request under s 225. He is entitled to make the application and what Cribb C did in a matter under s 185 is not relevant, nor did it produce the intended documents.

2. The Commissioner mistakes the facts.
   • (a) Harper-Greenwell C misinterpreted a submission of the Respondent that Justice McNab of the Federal Circuit Court refused him access to the documents: at [29]. This is false. The Applicant never sought to obtain documents in categories 2 & 3. Harper-Greenwell C's misinterpretation that all documents were refused by Judge McNab formed part of her decision. The decision was based on a mistake of fact.
3. The Commissioner did not take into account a material consideration.
   • (a) The Commissioner failed to take into account, or give appropriate weight to, the fact United Voice strongly opposed the application in 2013, yet now support its continuance when it falls another 5.7% below the Award.
   • (b) The Union's stance is a matter that should be considered, especially when the FW Act (s 226(b)) says that their view is one of few key statutory considerations.
   • (c) If the Union is the recipient of corrupting benefits which formed their view, and the reason for their change of stance is because of corrupting benefits, and their view it a material consideration, the documents should be produced. The Commissioner erred by not taking this into account.
4. The decision is unreasonable and plainly unjust.
   • (a) With reference to corrupting benefits, the Respondent continuously makes submissions that the Applicant's claims "are not only false but also scandalous": [2017] FWC 7040 [33]. The Union's view is one of the few key considerations under s 226. It is unreasonable and plainly unjust to disallow the Applicant access to documents to prove a relevant point and key s 226 consideration to support his application.
   • (b) There is an "apparent relevance which are not known to exist but which, as a matter of reasonable hypothesis, may well exist": Australian Workers' Union v Registered Organisations Commissioner [2017] FCA 1554 [54]. In light of the Union's dramatic change of position in supporting the substandard Agreement, the Respondent pouring significant resources into objecting to the Order and no reasonable explanation as to why the Union now support substandard wages and conditions of their members, the documents should be produced.
   • (c) It is plainly unjust to refuse the Applicant documents to further his case. It is unreasonable to allow the Respondent to label the Applicant's submissions as "false" and "scandalous" yet refuse him the documents to prove otherwise.
   • (d) The Respondent makes regular complaints to the Commission that their legal costs are excessive. The Respondent has invested significant resources into legal representation to oppose this order, yet if there were no corrupting benefits exchanged, they would not object to the order. If the Respondent did not pay off the Union, the Respondent would let the Order be made and simply produce no documents. Their stance opposing this order is telling. This should raise legitimate concerns about what the Respondent and the Union wish to hide.
   • (e) The Applicant should be afforded the right to be given access to documents to further his case, as the documents are relevant and a key consideration under FW Act s 226(b).

[12] It is convenient to deal first with grounds 2 and 3.

[13] Ground 2 contends that the Commissioner took into account 'extraneous and irrelevant facts' in accepting MSS's submission that Mr Findley was using the present proceeding to have a 'second bite at the cherry'. The MSS submission is a reference to proceedings before Commissioner Cribb regarding an application to approve an MSS enterprise agreement in which the Commissioner made an order for the production of documents relating to payments or benefits from MSS to United Voice. No such documents were produced.

[14] Ground 3 asserts that at [29] of the Decision the Commissioner made a 'mistake of fact' in accepting that the Federal Circuit Court had refused an application in substantially the same terms as the order sought in the proceedings at first instance.

[15] Both grounds proceed on a false premise, namely that the Commissioner accepted the MSS submissions. The Commissioner did no such thing. It is clear from [29] and [33] of the Decision that the Commissioner was simply setting out what MSS had submitted:

'[29] MSS submit that the reasons of relevance Mr Findley relies on are factually misconceived and that documents sought by Mr Findley are not relevant to the substantive matter. MSS submit that Mr Findley has sought production of documents which have already been denied to him by Justice McNab of the Federal Circuit Court as the information was not relevant to any issue between the parties in those proceeding. MSS submit that Mr Findley has sufficient information to prosecute his current application...

[33] The second set of documents Mr Findley has sought have been objected to by MSS on the basis that the claims of Mr Findley are not only false but also scandalous. Those documents were sought and dealt with in proceedings before Commissioner Cribb in Application by MSS Security Pty Ltd. MSS submit that, as he was not satisfied with the outcome of the order issued in those proceedings, Mr Findley is attempting to use these proceeding to have a "second bite at the cherry".'

[16] The Appellant relies on the fact that the above passages appear under the heading 'Consideration' in the Interim Decision, which is said to give rise to the inference that the Commissioner accepted the submissions referred to at [29] and [33]. We reject that contention.

[17] The decision subject to appeal must be read as a whole and considered fairly. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[14]:

'The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the interference of an error of law.'

[18] It is plain from a fair reading of the Commissioner's reasons that the essence of the decision to decline to make the orders sought is at [34]-[38]:

'[34] Mr Findley submits that the second set of documents he has requested are relevant as they will demonstrate the real reason why United Voice are opposing his application. Mr Findley submits that United Voice are receiving corrupting benefits from MSS and therefore would oppose the termination of the agreement.

[35] Mr Findley's submissions are predicated on the assumption that the terms of the agreement are so much less beneficial than the terms of the award that there could be no reason, other than corruption, for an employee organisation to oppose his application. As it stands the Commission does not currently have before it the submissions from United Voice on the substantive matter.

[36] I am not persuaded by Mr Findley's submission and I am not prepared to issue the orders in their current form. I am of the view that the documents sought are not relevant to the matters I am required to consider under section 226 of the Act.

[37] I am of the view that a comparison between the terms and conditions of the award and the agreement, together with submissions from the employees, employer and employee organisation, will be more than sufficient to enable me to determine this application.

[38] Having considered the documents requested to be produced as set out in the Form F52 and the submissions of the parties, I am not prepared to issue the order sought by Mr Findley at this time.'[15]

[19] Plainly the Commissioner's conclusion is based on her view that, at that point in time, the documents sought were not relevant to the matters in s.266. Nowhere does the Commissioner state that she accepts the submissions advanced by MSS in relation to the other proceedings before Commissioner Cribb and those in the Federal Circuit Court. There is no substance to grounds 2 and 3.

[20] It is convenient to deal with grounds 1 and 4 together. Both grounds contend, in essence, that the reason for United Voice's position in respect of the substantive application is relevant and hence the documents sought are relevant as they may show that the position taken by United Voice was because the union had received 'corrupting benefits' from MSS.

[21] We accept that the views of an employee organisation covered by the agreement are a factor to be taken into account in considering whether it is appropriate to terminate an agreement under s.226. So much is clear from s.226(b)(i)). We also accept that for the purpose of s.226(b)(i) it is also appropriate to consider the reasons for the views expressed.

[22] United Voice is an employee organisation covered by the 2011 MSS Agreement. It follows that in considering whether it is appropriate to terminate that agreement the Commission must take into account the union's views and in doing so it is appropriate to consider the reasons for those views.

[23] But none of this takes the Appellant the required distance.

[24] As is apparent from the Interim Decision at [35], at the time the Commissioner made her decision she did 'not currently have before [her] the submissions from United Voice on the substantive matter'. The Appellant's submission in support of the order to produce the documents is predicated on United Voice opposing the substantive application. In the appeal proceedings it was asserted that that was United Voice's position; reference was made to various representations by others, (that is other than United Voice), as to the union's position in relation to the substantive application. But we were not taken to any document from United Voice, in existence before the Interim Decision, setting out its position on the substantive application.

[25] We note that subsequent to the Interim Decision United Voice filed a written submission, dated 30 January 2018, in the following terms:

'I refer to the above matter, an application by Mr Joshua Findley ("Application"). In my absence on annual leave over January 2018, the Union has been unable to prepare timely formal submissions. However, the Union wishes to communicate a number of matters to the Commission:

1. Should the Commission consider that termination of the MSS Security Victorian Enterprise Agreement 2011 ("Agreement") would reduce the pay of the Respondent's employees, the Union opposes the Application. Should the Commission consider that termination of the Agreement would increase the pay of employees, the Union does not oppose termination.

2. The Union is unclear as to the likely effect of termination of the Agreement on employees. The Union is unaware of what proportion of employees benefit from particular pay benefits, for example, the 'Shift Work Allowances' at clause 23.2 of the Agreement. Also, the Union is aware that, although the rates of pay in the Agreement have fallen below the Security Services Industry Award 2010, the Respondent has provided pay increases to employees. However, the Union is unclear as to the enforceability of these pay increases. Nevertheless, this enforceability issue is minimal should the application before the Commission for approval of an enterprise agreement to replace the Agreement, matter AG2017/4663, be successful.

3. Where the Commission considers that termination would reduce the pay of employees, and where the application in matter AG2017/4663 is successful, the Union agrees with the submission of the Respondent that it would be detrimental to employees to reduce, and then shortly thereafter increase, their pay.

The Union will appear at the Hearing in this matter on 21 February 2018.'

[26] We are not persuaded that there is any substance to grounds 1 and 4. At the relevant time United Voice had made no submissions to the Commission in the substantive proceeding. As the view of United Voice was unknown at the relevant time it was plainly premature to seek documents said to be relevant to a consideration of the reasons for these views.

[27] Finally, we turn to ground 5, that the Decision is 'unreasonable and plainly unjust'.

[28] The principles applying to the issue of orders for the production of documents under s.590(2)(c) have recently been conveniently summarised in Re Penelope Vickers:[16]

'The principles applying to the issue of orders for production by the Commission under s.590(2)(c) are well established. The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings.[17] Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced.[18] The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.'[19]

[29] The Interim Decision does not disclose any error of principle and the Commissioner correctly stated the relevant test, namely, 'whether the documents sought have an apparent relevance to the issue in the proceedings' (at [28] of the Interim Decision). Further, it was plainly within the Commissioner's discretion to refuse the Appellant's application for an order to produce the documents sought. The Interim Decision is not unreasonable or plainly unjust, particularly having regard to the fact that at the relevant time United Voice had not made any submissions to the Commission in relation to the substantive application.

[30] We note that the Commissioner declined to make the order sought 'at this time' (see [38]). In the event that United Voice ultimately opposes the substantive application (which will depend on the Commissioner's assessment of whether or not the employees concerned will be better off if the agreement is terminated, see [25] above) Mr Findley can make a further application for an order to produce the documents sought.

[31] As mentioned earlier, this is an appeal from an interlocutory procedural decision. Such appeals are usually discouraged. We do not consider, for the reasons we have stated, that the Appellant has demonstrated a proper basis either in the public interest or otherwise for permission to appeal to be granted. Accordingly we refuse permission to appeal.

[1] [2017] FWC 7040.

[2] Appellant's submissions on the appeal at [15]

[4] Appellant's submissions in reply at [19(b)] at page 25 of the Appeal Book

[5] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied 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 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 & Alllied 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, 197 IR 266 at [24]- [27]

[8] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review_; Coal & Allied Mining Services Pty Ltd v Lawler_ (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[9] [2010] FWAFB 5343, 197 IR 266 at [24] - [27]

[10] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200 at 220; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [26]

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

[12] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, 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, 241 IR 177 at [28]

[13] See In re the will of F.B. Gilbert 91946) [1946] NSWStRp 24; 46 SR (NSW) 318 at 323; Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177; Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1990) 33 IR 431 at 432; Finance Sector Union v Comsec Trading Ltd Print PR945431, 6 April 2004 per Giudice J, Hamilton DP and Hingley C; Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2012] FWAFB 6907; Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384; Spectrum Community Focus v Valenzuela [2017] FWCFB 4524.

[14] (1996) 185 CLR 259 at 291

[15] [2017] FWC 7040 at [34]- [38].

[16] [2017] FWCFB 3131 at [8]

[17] Clermont Coal Operations Pty Ltd v Brown & Dews and Others [2015] FWCFB 2460 at [19]

[18] Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [19]

[19] Esso Australia Pty Ltd v AWU and ors [2017] FWCFB 2200 at [6]

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