United Voice v Restaurant and Catering Association of Victoria

The issue 3 On 4 June 2014, the Full Bench made a determination to vary the Award, relevantly so as to reduce the level of penalty rates payable to certain casual employees in the restaurant industry for Sunday work. 4 There is one issue in these proceedings, namely whether, as United Voice asserted, it was denied procedural fairness by the Full Bench not affording it the opportunity to lead any further evidence or make submissions in respect of s 134(1)(da) of the Fair Work Act 2009 (Cth). That provision had been enacted pursuant to the Fair Work Amendment Act 2013 (Cth). The latter Act received Royal Assent on 28 June 2013. Section 2(1) of that Act provided that the amendment to insert section 134(1)(da) (the s 134(1)(da) amendment) would commence operation on 1 January 2014.

Background 5 Originally, the Commission made the Award pursuant to the award modernisation process required by Pt 10A of the now repealed Workplace Relations Act 1996 (Cth). About 1500 awards were rationalised under the award modernisation process, largely along industry lines. The awards made under that process, including the Award, were 'modern awards' and took effect as such when the Fair Work Act commenced operation. 6 The Commission had to conduct a review of certain categories of modern awards under item 6 of Sch 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act) as soon as practical after the safety net provisions in the Fair Work Act had commenced. 7 In conducting a review of the Award under item 6 of Sch 5 of the Transitional Act, on 10 October 2013, Deputy President Gooley decided not to vary the penalty rates as provided for in the Award. On 31 October 2013, the Restaurant and Catering Association of Victoria sought permission under s 604 of the Fair Work Act to appeal from the decision of the Deputy President. The Full Bench of 5 members heard those proceedings and reserved its decision. The Full Bench published its reasons on 14 May 2014 and made orders granting permission to appeal. Relevantly, the majority made what they called the following orders on that occasion: (1) Permission to appeal is granted; (2) The appeal is upheld to the extent indicated in our decision; and (3) The relevant parts of the decision concerning the alternative Sunday penalty rates application and the receipt of moneys are quashed. 8 Importantly, the Full Bench did not, at that time, make a variation to the Award, but directed the Association to file and serve a draft determination to give effect to its reasons within seven days, and gave United Voice the opportunity to file and serve its own draft within a further seven days, if it considered the Association's draft did not properly give effect to the Full Bench's decision. The Full Bench made a determination varying the Award on 4 June 2014.

The legislative scheme 9 The modern awards objective is contained in s 134(1) of the Fair Work Act, which provides: "134 The modern awards objective What is the modern awards objective? (1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account: (a) relative living standards and the needs of the low paid; and (b) the need to encourage collective bargaining; and (c) the need to promote social inclusion through increased workforce participation; and (d) the need to promote flexible modern work practices and the efficient and productive performance of work; and (da) the need to provide additional remuneration for: (i) employees working overtime; or (ii) employees working unsocial, irregular or unpredictable hours; or (iii) employees working on weekends or public holidays; or (iv) employees working shifts; and (e) the principle of equal remuneration for work of equal or comparable value; and (f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and (g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and (h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy. This is the modern awards objective." (bold non-italic emphasis added) 10 Relevantly, item 6 of Sch 5 of the Transitional Act provided that, in conducting such a review, the Commission had to consider whether a modern award achieved the modern awards objective, set out in s 134(1) of the Fair Work Act (item 6(2)(a)). Item 6(3) and (4) provided as follows: "(3) The FWC may make a determination varying any of the modern awards in any way that the FWC considers appropriate to remedy any issues identified in the review. Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act). (4) The modern awards objective applies to the FWC making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages." 11 Under the Fair Work Act, the Full Bench is not bound by the rules of evidence or procedure in relation to a matter before it, including the conduct of a review (s 591) when it decides to vary an award, and s 598(1) and (2) provide that, inter alia, its determination to make the variation in the particular terms decided is a decision. 12 The Full Bench has power to grant permission to appeal from a decision of the Commission (including the Deputy President) under s 604(1) of the Fair Work Act. The Full Bench has power, first, under s 607(2) to admit further evidence and take into account any other information or evidence and, secondly, under s 607(3)(a) to confirm, quash or vary the original decision.

How the issue arose 13 It was common ground between the parties that no submission, either oral or in writing, had been made by any party to the Full Bench relating directly to the s 134(1)(da) amendment. Nor was it disputed that the Association had made clear, in both its notice of appeal to the Full Bench and its oral submissions, that it sought to have the Deputy President's decision quashed and the Full Bench conduct a rehearing on the existing evidence. We have noted above that the Full Bench delivered its reasons for its decision on 14 May 2014, but it only made the determination on 4 June 2014 that had the effect of varying the award in the respects complained of. 14 Importantly, although at no time during the proceedings before the Full Bench, in either 2013 or 2014, did either of the parties refer to s 134(1)(da), both the three-member majority's and the two-member minority's reasons of the Full Bench did refer to that provision and noted that it had come into force on 1 January 2014 after they had reserved their decision on 18 December 2013. Both sets of reasons addressed the application of the s 134(1)(da) amendment to the circumstances in issue concerning penalty rates and the review.

United Voice's submissions 15 In the proceedings before us, United Voice relied on an affidavit, affirmed on 12 June 2014, by Neal Swancott, one of its senior industrial advisers. He referred to the facts that, first, the Full Bench had not heard from the parties as to the amendment and, secondly, it had not afforded United Voice an opportunity to lead any evidence in respect of that amendment. He said that, had United Voice been given such an opportunity, it would have led evidence going to establishing the facts relevant to s 134(1)(da) as to increased costs associated with obtaining child care on Sundays, the reduced availability of public transport and higher costs of getting to and from work on Sundays, and the capacity for Sunday work to interfere in further education, study, family responsibilities and work-life balance. 16 His affidavit is significant for what it did not say about whether, first, United Voice, as an industrial organisation, was or was not aware at any time before 14 May 2014 that s 134(1)(da) would, or had, come into effect on 1 January 2014, or, secondly, it had ever turned its mind to seeking to reopen or to ask the Full Bench to hear it on the effect of the s 134(1)(da) amendment. 17 United Voice argued that it would have wished to be heard on the effect of the s 134(1)(da) amendment on the exercise of the Full Bench's discretion as to how the competing mandatory considerations prescribed in s 134(1) ought be balanced, and how the evidence led by each party ought be assessed, including the considerations introduced on 1 January 2014 by the s 134(1)(da) amendment.

Consideration 18 The relevant legal principle as to what procedural fairness requires in a case such as this was expressed by Gaudron J, with whom Dawson J agreed, in Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 219-220 (the Architects Case), where she said: "There is a further question: was the Commission required, as a matter of procedural fairness, to afford the parties an opportunity to be heard upon the issues directed by s 142 in the light of the construction adopted by it? Ordinarily, when a decision on a question of law will affect the nature and range of the factual matters by reference to which the matter in issue may be decided, considerations of fairness require that the parties be given an opportunity to lead evidence and make submissions by reference to the principles of law to be applied. This must be so even if the existence of the question is not apparent until the hearing has concluded. Although, of course, the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given "a reasonable opportunity to present his case" and not that the tribunal ensure "that a party takes the best advantage of the opportunity to which he is entitled". And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81; 76 ALR 353 at 358." (bold non-italic emphasis added) 19 Her Honour expressed that statement of principle in considering whether a Full Bench of a predecessor of the Commission should have invited submissions on the proper construction of a legislative provision, against the background that a concession had been made on that matter but where the concession had not been acted upon by the Full Bench in arriving at its unexpected construction. A similar issue arose in Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 76 ALR 353 in the context of the effects of a concession that had been made. 20 Different considerations may arise here, where the issue is the extent to which a party in proceedings ought to have availed itself of the opportunity to address the relevance of an enacted statutory provision, such as s 134(1)(da), in circumstances where that provision was not in force at the time of either the primary decision or the hearing of the appeal, but where the party was aware that it was open to the Full Bench to determine the appeal by way of rehearing on the evidence and submissions it had heard at a time after the provision had come into force, after it had reserved its decision, and the Full Bench was bound to apply it. 21 The Association contended that there was no procedural unfairness because United Voice was at all times on notice that the appeal to the Full Bench was to, and did, proceed on the basis of the Association's contentions that, first, the decision of the Deputy President was attended by appellable error; secondly, the Full Bench should quash the decision, if it granted permission to appeal; and, thirdly, the Full Bench, having quashed the decision, should itself decide the issues the subject of the appeal on the evidence that was already before the Deputy President and it on the re-hearing. The Association submitted that United Voice had had every opportunity during the hearing of the appeal before the Full Bench to raise any issue concerning the application of the s 134(1)(da) amendment and the admission of further evidence, but had elected not to do so. The Association also drew attention to the fact that, following the publication of the Full Bench's decision on 14 May 2014, and prior to the making of its determination, United Voice had a further opportunity to raise any issue concerning the application of s 134(1)(da), but had not done so. Finally, the Association contended that, if procedural unfairness were established, this Court should exercise its discretion to refuse the relief sought. 22 There appears to be considerable force in the Association's contention that, up to and including the hearing of the appeal below, United Voice was on notice that the Association was seeking to have the Full Bench conduct a re-hearing of the matter on the basis of the existing evidence. Furthermore, the Full Bench had reserved its decision on 18 December 2013 after affording the parties a further short opportunity to file supplementary submissions on some limited matters, and it was probable that the Full Bench would not publish its reasons or finalise the appeal before 1 January 2014. Senior counsel for United Voice acknowledged in argument that, in those circumstances, it was open to the Court to infer that United Voice was aware of the facts that the s 134(1)(da) amendment had been enacted and would commence on 1 January 2014 and then form one of the mandatory considerations that the Full Bench would have to take into account. 23 Accordingly, United Voice ought to have been aware of the possible relevance of the s 134(1)(da) amendment in the event that the Full Bench were to grant permission to appeal, uphold the appeal and then proceed to conduct a re-hearing on the evidence and material on which it had been addressed on 18 December 2013. As we have noted, the Association had made its position clear in the hearing before the Full Bench that it should proceed to re-hear the matter on that evidence and material and the submissions that had been made. In these circumstances, it is difficult to see how United Voice can justifiably complain of procedural unfairness. It was a matter for United Voice to determine whether or not it wished to adduce evidence or make submissions to the Full Bench either at the time of the hearing on 18 December 2013 on the potential relevance of the s 134(1)(da) amendment or thereafter, but it chose not to do so for reasons that it did not explain. 24 In our view, however, United Voice's complaint of procedural unfairness is unsustainable for a separate reason. That reason is that United Voice had the opportunity to raise the matters that it contended it wanted to raise once the Full Bench had published its reasons on 14 May 2014. 25 On that day, United Voice was put squarely on notice that the Full Bench had decided to uphold the appeal, conduct a re-hearing based on the existing evidence and to take into account s 134(1)(da) in doing so. Those matters were revealed in the Full Bench's reasons when they were published. At that time, those reasons also informed the parties that, although the Full Bench had taken s 134(1)(da) into account, the majority had taken the view that the result would have been the same even if the s 134(1)(da) amendment had not come into effect (see at [94]). 26 The publication of the Full Bench's reasons on 14 May 2014 did not constitute a determination to vary the Award within the meaning of item 6(3) of Sch 5 of the Transitional Act. Rather, the Full Bench at [156] of the majority's reasons directed the parties to file a draft determination to vary the Award so as to give effect to the majority's decision. It was only on 4 June 2014 that the Full Bench made a determination for the purposes of item 6(3) of Sch 5 of the Transitional Act. Item 6(3) empowered the Commission (and on appeal the Full Bench) to make a determination varying any modern award in a way that the Commission considered appropriate to remedy any issues identified in a review. The note to item 6(3) specified that any variation of a modern award had to comply with the provisions of the Fair Work Act relating to the content of modern awards. Item 6(4) made clear that the modern awards objective in s 134(1) applied to the Commission and the Full Bench when making a variation under item 6, including, for present purposes, when the Full Bench made the determination to vary the award on 4 June 2014. 27 In our opinion, United Voice was afforded an opportunity to raise any issue of procedural unfairness relating to the amendment effected by s 134(1)(da) when the Full Bench published its reasons on 14 May 2014 and directed the parties to consider and formulate the terms of a draft determination. 28 The Full Bench did not make a determination on 14 May 2014 that varied the Award. Contrary to United Voice's submission, the Full Bench was not functus officio at that date. United Voice offered no satisfactory explanation as to why it did not seek to ventilate its complaint of procedural unfairness upon becoming aware of the contents of the Full Bench's reasons and the manner in which those reasons had dealt with the issues relating to s 134(1)(da). 29 United Voice candidly acknowledged that it did not complain in these proceedings that the Full Bench had misconstrued s 134(1)(da) in giving effect to the weighing of all of the mandatory considerations in s 134(1). Rather, United Voice's grievance related exclusively to its assertion that it ought to have been allowed to address evidence and submissions to the Full Bench on the effect of the s 134(1)(da) amendment. We consider that that grievance has no substance. From the time of publication of the Full Bench's decision, it was open to United Voice to raise its complaint of procedural unfairness directly with the Full Bench. It elected not to do so. 30 In Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638 at 681 [156], Hayne, Crennan, Kiefel and Bell JJ observed that the rules of procedural fairness do not have immutably fixed content and, as Gleeson CJ had said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 31 United Voice failed to establish that it did not have the opportunity on or after 14 May 2014 to present any case to the Full Bench that it wished to make in respect of s 134(1)(da) before the Full Bench made the determination on 4 June 2014 to vary the Award under item 6(3) of Sch 5 of the Transitional Act. In those circumstances, in our opinion, United Voice has not suffered any practical injustice or procedural unfairness. 32 In the circumstances, it is unnecessary for us to consider and determine the Association's alternative contentions regarding the discretion to refuse constitutional writ relief.

Conclusion 33 For these reasons, the originating application for relief under s 39B(1A) of the Judiciary Act should be dismissed. Having regard to s 570 of the Fair Work Act, there should be no order as to costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Bromberg and Griffiths.