[2018] FWCFB 856

The attached document replaces the document previously issued with the above code on 8 February 2018.

Typographical errors in footnote 10 and paragraph [84] have been amended.

Associate to Vice President Catanzariti

Dated 8 February 2018

Fair Work Act 2009
s.604 - Appeal of decisions

BlueScope Steel (AIS) Port Kembla
v
The Australian Workers’ Union, the Australian Manufacturing Workers’ Union & the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2017/3553)

Appeal against decision [2017] FWC 2583 of Commissioner Riordan at Sydney on 9 June 2017 in matter numbers C2014/5556, C2014/5383 and C2014/1256.

Catanzariti VP and Spencer C

[1] On 9 June 2017, Commissioner Riordan issued a Decision 1 (2017 Decision), which found that the Fair Work Commission (Commission) had the power to conduct a review in accordance with the decision issued by the Commissioner on 24 September 20152 (2015 Decision). That is, the Commissioner found that pursuant to s.739(4) of the Fair Work Act 2009 (Cth) (Act) and clause 35.1.7 of the BlueScope Steel Port Kembla Steelworks Agreement 2012 (2012 Agreement), dispute proceedings were not concluded by the 2015 Decision. As a result, the Commissioner dismissed the jurisdictional objection raised by BlueScope Steel (AIS) Port Kembla (Appellant), namely, that the Commission did not have jurisdiction to conduct a review.

[2] On 29 June 2017, the Appellant lodged a Notice of Appeal in relation to the 2017 Decision. We heard the appeal on 23 August 2017 and reserved our decision. At the hearing, Mr G. Hatcher SC, and Mr K. Brotherson, of Counsel, appeared for the Appellant and Ms L. Saunders, of Counsel, appeared for the AMWU and the CEPU, however, there was no appearance for the AWU (Respondents). Given the complexity of the matter and having regard to s.596 of the Act, permission was granted to both parties to be represented.

The Decision at First Instance

[3] The Commissioner noted that the 2015 Decision allowed the Appellant to immediately introduce the Trade Operator Model (TOM) into its Hot Mills Department. In particular, the Commissioner held:

‘[23] I have decided that the proposed Trade Operator Model can be introduced immediately on the understanding that a review will be undertaken by the FWC in relation to the operation of the new classification and rate of pay in April 2016.’ 3

[4] The Commissioner noted that the proposed review in April 2016 was overlooked by the Commission, the Appellant and the Respondents. The Commissioner further noted that the Commission was reminded of the review by the AMWU in another matter (C2016/6680), 4 where senior management of the Appellant claimed that the introduction of the TOM had been condoned by the Commission because the time for the review in the Hot Mills Department had lapsed.

[5] The Commissioner issued a Notice of Listing to conduct a conference in relation to the review. The Appellant advised of a jurisdictional objection relating to the capacity of the Commission to conduct this review.

[6] The Commissioner outlined the  principal issues to be determined in his 2017 Decision were:

(a) Whether the Commission has the capacity to conduct a review of the introduction of the TOM; and

(b) Whether the Appellant has the option not to participate in the review, having implemented the operation of the TOM into the Hot Mills Department.

[7] The Commissioner noted that neither party appealed against the 2015 Decision. Further, that the Respondents would have been ‘disappointed’ in the Commissioner’s decision to allow the TOM to be introduced into the Hot Mills Department, but that the Respondents would have taken some solace from the proposed review. The Commissioner held that, to now deny the Respondents the opportunity to participate in the review, would be a denial of natural justice.

[8] The Commissioner found that the Appellant gave commitments that the introduction of the TOM would not result in the deskilling of tradespersons, would lead to reduced utilisation of contractors and improve the productivity and profitability of the Hot Mills business. In this regard, the Commissioner held that the review will be able to explore each of these issues.

[9] The Commissioner did not accept the Appellant’s argument that the 2015 Decision concluded half way through paragraph [23]. The Commissioner held that such a proposition is legally flawed and procedurally unfair. Further, that such an outcome would result in a denial of natural justice for the Respondents who accepted the decision on its merits and in accordance with the provisions of the 2012 Agreement. The Commissioner held that the wording in paragraph [23] is clear, concise and unambiguous.

[10] The Commissioner noted that the Appellant implemented the 2015 Decision without question, qualification or clarification. Further, that the evidence shows that the Appellant’s management who implemented the 2015 Decision were waiting for the review to be undertaken by the Commission.

[11] Based on the decision of the Full Bench, 5 the Commissioner found that the making of the BlueScope Steel Port Kembla Steelworks Enterprise Agreement 2015 (2015 Agreement) did not settle this dispute. In particular, the Commissioner noted that the title and rate of pay for each classification was settled, but not the duties, skills and competencies of each classification. In this regard, the Commissioner held that the duties, skills and competencies of the Trade Operator are some of the core issues of the review.

[12] As such, the Commissioner found that the Commission has the power to conduct the review in accordance with the 2015 Decision.

The Appeal

[13] At the heart of the appeal is whether the Commissioner was correct in finding that the Commission has the power to conduct the review in accordance with the 2015 Decision.

Appellant’s Submissions dated 27 July 2017

[14] The Appellant outlined eight grounds of appeal, which we summarise as follows.

[15] Grounds 1-4 and 7 asserted that the Commissioner made errors in determining the power available to the Commission under the dispute resolution procedure of the 2012 Agreement and the Act.

[16] In particular, ground 1 contended that the Commissioner erred by finding there was jurisdiction in the proceedings under s.739 of the Act for the Commission to conduct a ‘review’ of the TOM, which was implemented in the Hot Mills business at the Appellant’s Port Kembla Steelworks in or about October 2015, following the 2015 Decision. Ground 2 submitted that the Commissioner erred by not finding that the power of the Commission in the proceedings was exhausted and the proceedings not resolved by the 2015 Decision in determining that the Appellant’s three proposals for the TOM in its Hot Mills business were safe, efficient and fair as required by clause 35.2 of the 2012 Agreement. Ground 3 posited that the Commissioner erred in finding, and exceeded the jurisdiction of the Commission, by relying on a statement in the 2015 Decision, separate to the required findings of safe, efficient and fair, that the implementation of the Appellant’s trade operator proposals was ‘on the understanding that a review will be undertaken by the FWC in relation to the operation of the new classification and rate of pay in April 2016.’ 6 Ground 4 contended that the Commissioner erred and misunderstood the jurisdiction of the Commission by finding, contrary to ss.595 and 739 of the Act, that the power to conduct a review as referred to in the 2015 Decision was available under the terms of the 2012 Agreement and the Act. Ground 7 asserted that the Commissioner erred in finding jurisdiction, whilst acknowledging doubt over the ‘legal capacity’ of the Commission to lawfully make an order.

[17] Grounds 5 and 6 submitted that the Commissioner made errors arising from consideration of irrelevant factors.

[18] In particular, ground 5 posited that the Commissioner erred in relying on matters not relevant to the determination of the Commission’s jurisdiction in the proceedings, including:

(a) That it would be unfair to the Respondents for the review not to proceed;

(b) That the Appellant did not appeal the 2015 Decision, and unnecessarily speculating on the Appellant’s motives for raising the issue of jurisdiction; and

(c) Matters not raised at the hearing on 30 March 2017, namely, a dispute settlement provision in an unregistered agreement not part of the 2012 Agreement, and ‘evidence’ of the position of the Appellant’s management.

[19] Ground 6 contended that the Commissioner erred in misunderstanding the jurisdiction of the Commission and the rights of the parties to the 2012 Agreement in finding that ‘neither parties’ rights were exhausted or extinguished as a result of their participation in the review.’ 7

[20] Finally, ground 8 asserted that the Commissioner erred in not otherwise accepting that the subject matter of the purported review (classifications and rates of pay) was, in any event, effectively settled by the parties in subsequently making the 2015 Agreement.

[21] For these reasons, the Appellant submitted that permission to appeal should be granted, the appeal should be granted and the 2017 Decision be quashed.

Respondents’ Submissions dated 10 August 2017

[22] The Respondents outlined five main submissions in response, which we summarise as follows.

[23] First, the Respondents contended the appeal is an abuse of process. In particular, the Respondents asserted that the 2015 Decision has not been quashed by a Full Bench or a Court, and stands. In this regard, the Respondents noted that, even if the Appellant was to demonstrate that the decision was affected by jurisdictional error, the decision would remain ‘a thing in fact’, 8 and it is not open for the Appellant to simply declare part of it ineffective.

[24] Second, the Respondents submitted that the review is within power. The Respondents noted that the Appellant argues that the Commission concluded that the change was safe, efficient, and fair, and allowed its permanent implementation. It further contends that this was the only path open to it, and to the extent the decision purports to go further, it is a ‘nullity’. 9 The Respondents asserted that this rests on an unsustainably narrow reading of clause 35, and ignores the Commissioner’s actual findings as to fairness, and thus fails. The Respondents posited that the correct approach to interpretation of enterprise agreements was recently summarised in AMWU v Berri Limited.10 The Respondents contended that the 2012 Agreement provides the Commission with a broad power to resolve disputes about the implementation of workplace change, including by making any change subject to limitations or review. Further, the Respondents posited that the power to deal with the matter arises initially from clause 35.2.3(k), which allows parties who dispute the introduction of a significant change to refer the matter directly to the Commission for arbitration under clause 35.1.7. The Respondent noted that, in the case of significant change, the Commission must consider and determine whether the change is safe, efficient, legal and fair. The change cannot be implemented unless and until the Commission is satisfied that all four criteria are met. However, the Respondent contended that the Commission may only consider these matters in light of the material put forward by the parties, or only make the determination sought by either party.

[25] The Respondents submitted that, on a fair reading of the 2015 Decision, it is apparent that the Commissioner was not satisfied, absent further evidence, that a permanent finding of fairness was possible. The Respondents noted that the 2017 Decision confirms this at paragraph [39]. The Respondents posited that the review is best understood as an exercise of the Commission’s power under s.590 to make enquiries and gather evidence, to allow that final finding to be made. The Respondents contended that the review may lead to a final decision as to implementation that differs from either party’s preferred position, but this is merely one possibility. Accordingly, the Respondents asserted that it was squarely within the Commission’s power to order a review of the new operation of the maintenance trades classifications in the 2015 Decision, and no error emerges in the 2017 Decision finding confirming this.

[26] Third, the Respondents submitted that any House v The King 11 error is irrelevant. The Respondents noted that the Appellant, at grounds 5 and 6, challenged the 2017 Decision on the basis that the Commissioner took irrelevant considerations into account. In this regard, the Respondents asserted that the 2017 Decision did not involve discretionary considerations. The process undertaken by the Commissioner in reaching his conclusion is of no significance to this appeal; at issue is whether the result is correct.

[27] Fourth, the Respondents contended that the review has continued utility. The Respondents noted the Appellant’s contention that that the review lacks utility is based on the argument that the 2015 Agreement involved an acceptance of the current operation of the classification structure, and concluded the dispute. In this regard, the Respondent asserted that this appears to be based on a view that the review can only lead to an alteration of the classification structure and wage rates set out in the 2015 Agreement. The Respondent submitted this is not so and, as the 2017 Decision clarifies at paragraph [46], the focus of the review is the ‘duties, skills and competencies’ attached to each classification.

[28] Fifth, the Respondent noted that the Appellant seems to suggest that once the 2012 Agreement ceased to operate, the Commission lost the power to continue to deal with the dispute. The Respondent contended that this argument does not feature in the Notice of Appeal, it was not pressed at first instance and the Appellant should not be permitted to agitate it now. In any event, the Respondent asserted the submission is incorrect, noting that, once a person has accrued a right to have the Commission arbitrate a dispute under an enterprise agreement, the fact that the enterprise agreement subsequently ceases to apply to that person does not remove that accrued right. 12

Appellant’s reply submissions dated 17 August 2017

[29] The Appellant outlined two main submissions in reply, which we summarise.

[30] First, the Appellant made submissions in relation to the Commission’s power to conduct the review.

[31] In particular, the Appellant contended that the assessment of safe, efficient, legal and fair under the 2012 Agreement was to be made at a point in time to determine, in the case of change which was significant in nature, whether status quo halting a change should be lifted or remain in place (subclause 35.2.3(k)). The Appellant noted that the disputes procedure only comes into play following a comprehensive process of consultation before any final decision by the Appellant as to a change to be implemented, and relevantly at subclause 35.2.1(c) it states:

‘… Subject to any disagreement being dealt with in accordance with agreed procedures, and in the case of significant change 35.2.3, the change will be able to be implemented.’ (emphasis added)

[32] The Appellant asserted that the requisite findings that the changes were each safe, efficient and fair, importantly lifted the ‘status quo’ that had halted (at that time) the disputed change. The Appellant contended that the Respondents’ asserted that ‘the review may lead to a final decision as to implementation.’ 13 The Appellant submitted that, in the circumstances of the 2012 Agreement, this is a disingenuous submission. The Appellant noted that the 2015 Decision has none of the hallmarks of an interim decision. In this regard, the Commissioner stated he may under other circumstances have considered recommending ‘a 3 month trial’, but he did not do that. Relevantly, the Appellant posited that trials under the 2012 Agreement were, in any event, dependent on the agreement of the parties during the consultation process (subclause 35.2.3(l)).

[33] Further, the Appellant noted that Respondents’ contention at paragraph 36 of its submissions that the review could result in ‘a finding that aspects of the change are unfair’. In this respect, the Appellant asserted it is unclear what the Respondents say any such partial finding would mean and, in any event, it is not the test for change specified in the 2012 or 2015 Agreement.

[34] The Appellant also contended that the Respondents’ position is not rescued by its claim at paragraph 35 of its submissions that ‘the review is best understood as an exercise of the Commissioner’s power under s.590’. The Appellant submitted that s.590 is a procedural power which does not empower the Commission in proceedings under s.739 of the Act to act inconsistently with its delegated role under an enterprise agreement.

[35] The Appellant posited that the ‘understanding’ for a review was confined to two issues: operation of the new classification and rate of pay. The Appellant asserted that the Appeal Decision 14 had already made clear that a new classification for the purposes of the 2012 Agreement was not created by the Appellant’s proposals, and the 2015 Agreement re-affirmed that rates of pay are currently set by the 2015 Agreement with no extant power of the Commission to amend or vary those rates, which now seems accepted by the Commissioner.

[36] Second, the Appellant made submissions in relation to the non-operation of the 2012 Agreement.

[37] In particular, the Appellant referred to the Respondents’ contention that there is an ‘accrued’ right to have the Commission arbitrate a dispute. In this regard, the Appellant asserted that the authorities relied on in the Respondents’ submissions (footnote 8) in support of that submission are cases of a different character to the current situation, involving the ability of former employees to pursue matters under the dispute settlement provisions of operative agreements. The Appellant submitted that the purported review was at best a further process contemplated by the Commissioner. It did not in itself establish any right for an employee or party capable of enforcement. The concept of accrued rights does not apply where a matter concerns only the possible creation of rights and no determination/award has been made. 15

[38] The Appellant contended that the weight of relevant authority supports the position of the Appellant that the making of the 2015 Agreement extinguished any residual power that may have existed under the 2012 Agreement for the purported review. 16

[39] The Appellant noted that, in North Goonyella, Deputy President Asbury reviewed those authorities, and conveniently summarised the position at paragraph [21] as follows:

‘A number of general principles can be distilled from the cases. Where a dispute clause in an enterprise agreement empowers the Commission to settle a dispute about matters arising under the agreement and a dispute is commenced, the Commission will no longer have jurisdiction to deal with the dispute if the agreement ceases to operate while the dispute is on foot, unless the successor agreement has a savings clause, or a dispute settlement term that empowers the Commission to settle disputes about matters that are not confined to the application or the terms of the agreement.’

[40] The Appellant asserted that the exceptions referred to by Deputy President Asbury do not arise in the circumstances of the 2015 Agreement.

Australian Workers’ Union v BlueScope Steel Limited [2016] FWC 3848 (Springhill Decision)

[41] On 28 August 2017, Vice President Catanzariti’s chambers sent correspondence to the parties referring to the Springhill Decision in which Junior Counsel for the Appellant appeared. In that correspondence, we noted that the Springhill Decision may be relevant both in relation to permission to appeal and the merits of the appeal. As such, we invited further written submissions in relation to this decision. We afforded the parties with the opportunity to provide further oral submissions in relation to Springhill Decision, however, the parties did not disclose an intention to do so and, therefore, we rely upon their written submissions. We summarise those submissions below.

Appellant’s submissions dated 4 September 2017

[42] The Appellant noted that, at paragraph [61] of the Springhill Decision, it was held:

‘However that is not the end of the matter, because the BlueScope proposal for Despatch operators to perform other duties in the PFD was initiated at a time when the 2012 Agreement was in effect, with the consultation process then continuing beyond 25 November 2015 when the 2015 Agreement took effect. It is plain that the 2015 Agreement could not have retrospective effect, and no party contended otherwise. The 2015 Agreement does not contain any transitional provisions in relation to the introduction of significant changes first proposed prior to the 2015 Agreement taking effect. Therefore it is necessary to approach the matter on the basis that the relevant provisions of the 2012 Agreement applied to those stages of the introduction of the proposed changes which occurred prior to 25 November 2015, and the 2015 Agreement applied to those stages which occurred on or after 25 November 2015. The most significant consequence of this approach is that the “first phase” of consultation prior to “Letter 1” introduced by the 2015 Agreement has no application to a proposed change in relation to which a “Letter 1” was issued prior to 25 November 2015.’

[43] The Appellant contended that it is evident in the Springhill Decision (paragraphs [60], [61] and [64]) that Vice President Hatcher proceeded on the basis that only one agreement could apply at any point in time (s.58 of the Act), and that the dispute settling power he exercised was under the 2015 Agreement (see in particular the last sentence at paragraph [64]), a position entirely consistent with the Appellant’s submissions.

[44] The Appellant noted that, as acknowledged on behalf of the Appellant at the hearing on 23 August 2017, whether there could ever be ongoing jurisdiction for the Commission to exercise power under a dispute settlement process from a former enterprise agreement ‘depends’ on the nature of the dispute, but power will certainly lapse where the new agreement exhaustively covers an issue. 17 The Appellant asserted that, in the present case, the subject matter of the proposed review (classifications and wage rates) is settled, and one pre-condition to any further dispute is the initiation of change by the employer under the current agreement which has not occurred.18

[45] The Appellant submitted that, at paragraph [32] of the Springhill Decision, Vice President Hatcher considered the differences in change processes under the BlueScope Steel Limited Springhill Workplace Agreement 2012 and the BlueScope Steel Limited Springhill Workplace Agreement 2015 (2015 Springhill Agreement), and relevantly stated that:

‘A disputed change under the 2012 Agreement could not be implemented until the matter had been dealt with to finality by the Commission.’

[46] The Appellant posited that the natural corollary of that proposition is the Appellant’s submission in the present proceedings that the implementation of the disputed change that flowed from the Commissioner’s 2015 Decision meant that the matter had been dealt with to finality by the Commission.

[47] The Appellant also referred to AWU v Bluescope Steel (AIS) Ltd 19 (Blast Furnace Decision). The Appellant noted that the parties in those proceedings agreed to apply the provisions of the 2012 Agreement. However, the Appellant contended that, whilst that position is inconsistent with the submissions put by the Appellant in the present appeal, in the Appellant’s submission it can plainly be distinguished.

[48] The Appellant submitted that it was not the subject of consideration by the Commission, the parties having acknowledged the presence of the dispute and the necessity to deal with it under one or other procedure in proceedings which ensured the continuing operation of the business. The Appellant posited that, on the analysis applied by Vice President Hatcher in the Springhill Decision at paragraph [31] as to the differences between the two provisions, there was no relevant distinction for the purposes of this particular dispute.

[49] Further, the Appellant asserted that, to the extent the Commission has asked to be addressed further on the question of permission to appeal with the benefit of the Springhill Decision, the Appellant repeats its earlier submissions and supplements them by pointing out that a refusal of permission to appeal would leave two single member decisions in conflict on the question of whether jurisdiction is conferred on the Commission to deal with a dispute under the provisions of a dispute procedure in an agreement which no longer applies to a party.

Respondents’ submissions dated 13 September 2017

[50] The Respondents noted the Appellant’s contention that the Commission’s jurisdiction to continue to deal with this dispute disappeared the instant the 2012 Agreement ceased to apply to the parties. The Respondent asserted the Appellant did not raise this argument at first instance or in its Notice of Appeal, or particularise it fully until its earlier reply submissions.

[51] The Respondents submitted that the Commission’s jurisdiction continues. In particular, the Respondents asserted that all that is required by s.738(b) of the Act is an enterprise agreement. The Respondents noted that, where the Act requires an instrument to apply to a party, it says so. Nowhere is this more plainly shown than s.739(5), which prevents arbitrated outcomes inconsistent with a ‘fair work instrument that applies to the parties’. In this regard, the Respondents highlighted that s.12 of the Act relevantly defines ‘fair work instrument’ as an ‘enterprise agreement’.

[52] The Respondents posited that, if ‘enterprise agreement’ was interpreted to mean ‘applicable enterprise agreement’, the words ‘that applies’ would have no work to do. The Respondents further contended that interpretations which render parts of clauses otiose are unlikely to be correct. The Respondents asserted that this, combined with the general scheme of the Act including the deliberate delineation between an existent and an applicable/operative enterprise agreement, demonstrates that the limitation on s.738(b) sought by the Appellant is not available.

[53] The Respondents outlined that the Appellant’s subsidiary jurisdictional objection, that the matter was concluded by the 2015 mediation and MOA, also fails. The Respondents contended that Vice President Hatcher plainly rejected this proposition in the Springhill Decision at paragraph [13]. The Respondents noted that the Appellant did not appeal this decision at the time and there is no reason for the Full Bench to depart from it now.

Appellant’s reply submissions dated 20 September 2017

[54] The Appellant contended that the Respondents’ outline of submissions dated 13 September 2017 did not in any substantive way address the Springhill Decision.

[55] The Appellant asserted that paragraph 7 of the Respondents’ submissions is the only attempt to specifically address the Springhill Decision and, in doing so, demonstrates both a misunderstanding of that decision, and what it incorrectly terms the Appellant’s ‘subsidiary jurisdictional objection’. In this respect, the Appellant contended:

(a) The Respondents’ submissions confused the existence of an unresolved ongoing dispute, with the legal means for it to be determined. At paragraph [13] of the Springhill Decision to which the Supplementary Union Outline refers, it is plain that the Vice President is referring to the former aspect;

(b) It is otherwise evident throughout the Springhill Decision that the Vice President takes the view that only one enterprise agreement can apply at any point in time (for example at paragraphs [60], [61] and [64]), and that the applicable dispute settlement procedure in that matter was from the current 2015 Springhill Agreement;

(c) The history of the matter set out at paragraph [21] of the Springhill Decision identifies that the Vice President even recommended to the AWU the need to lodge an application under s.739 of the Act and in accordance with the 2015 Springhill Agreement, which is what the AWU did and from which the Springhill Decision arises.

[56] In relation to the what the Respondents’ characterised as the Appellant’s subsidiary jurisdiction objection, the Appellant contended:

(a) The Appellant’s first objection to the purported review in the proceedings below has always been that the learned Commissioner’s decision of 24 September 2015 meant that the proceedings had been dealt with to finality. That is consistent with the view of the Vice President at paragraph [32] of the Springhill Decision. The Appellant’s submission to that effect (paragraphs [22] and [23] of its submissions dated 4 September 2017) is not controverted by the Respondents’ submissions dated 13 September 2017; and

(b) The Appellant’s position as to the effect of the 2015 mediation and the MOA was otherwise to the point that the issue of trade operators was considered, and that classifications and wage rates (being the subject matter of the purported review), were settled. That is not a subsidiary position of the Appellant. It is also quite distinct to the dispute the subject of the Springhill Decision, where certain work arrangements ‘not dealt with in the 6 October 2015 recommendation’ remained unresolved (paragraph [13]).

Consideration – Permission to Appeal

[57] The Commission will grant permission to appeal if it is in the public interest to do so. 20 The test of assessing whether a matter is in the public interest is discretionary and involves a broad value judgement.21 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,22 the Full Bench summarised the test for determining the public interest as follows:

‘[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]

[27] Although 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, it seems to us that none of those elements is present in this case.’

[58] Alternatively, other grounds on which permission to appeal may be granted include the decision being attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if permission is refused. 23 It will rarely, if ever, be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated, as an appeal cannot succeed in the absence of such error.24 However, the mere identification of some error in the decision under appeal may not by itself constitute a sufficient basis for the grant of permission to appeal.25

[59] We are not satisfied this is a case in which permission to appeal must be granted in the public interest or should be granted on discretionary grounds. The critical question sought to be raised in the appeal, expressed in a variety of ways in the appeal grounds, is whether the Commission has the power to conduct the review contemplated by the 2015 Decision now that the 2012 Agreement has been displaced in its operation by the 2015 Agreement. We do not consider it to be necessary in the public interest or appropriate to grant permission to appeal to determine this question for the following reasons:

1. It would be entirely premature to do so. All that flows from the 2017 Decision at this stage is the conduct of a ‘review’, which would presumably involve conferrals with the parties and perhaps inspections and the receipt of evidence and submissions. No exercise of arbitral power pursuant to clause 35.1.7 of the 2012 Agreement adverse to the Appellant’s interests has occurred, or is contemplated or imminent. As the Commissioner emphasised at paragraph [49] of the 2017 Decision, there is no predetermined outcome and a plethora of possible outcomes from the review. There is no reason to assume at this stage that the review will move beyond a conciliation process or that any arbitral process will even occur. In the event that the Commissioner proceeds or proposes to exercise arbitral power, it will be open to the Appellant to lodge a further Notice of Appeal at that time.

2. It is doubtful that the appeal has practical utility in terms of the conduct of the review contemplated by the 2015 Agreement, regardless of how the critical question we have identified is answered. To the extent that members of the Respondents have any issue or grievance with the implementation of the TOM, that is an issue which may be agitated under the dispute resolution procedure in clause 35.1 of the 2015 Agreement. That is so because the TOM fundamentally involves tradespersons being required to perform a wider range of duties – a matter which arises under the 2015 Agreement (and thus may be amenable to dispute resolution under clause 35.1.1) because clause 32.4 requires that ‘[e]mployees must perform such work as the Company may, from time to time reasonably require.’ What may reasonably be required might be affected by a range of matters, including the nature of the duties and the remuneration proposed to be paid for them. The dispute resolution procedure in clause 35.1 ultimately allows for conciliation and arbitration by the Commission (see clause 35.1.7). That is, the review of the TOM may ultimately proceed anyway by the use of a different dispute resolution vehicle. The utility of an appeal is relevant as to whether permission to appeal should be granted. 26

3. It is clear, we consider, that the contemplated review was a fundamental part of the outcome determined in the 2015 Decision and necessarily involved there being a further stage in the dispute proceedings. The Commissioner’s decision that the TOM could be introduced was conditional upon the review occurring at a later time as part of the same proceeding, as paragraph [23] of the Decision makes clear. No appeal was ever lodged against this outcome in the 2015 Decision by the Appellant or the Respondent. It would be unfair, we consider, for members of the Respondent to be deprived of the conduct of the contemplated review, at least to a point short of the imposition of an arbitrated outcome, having accepted the introduction of the TOM to which they were strongly opposed.

4. The critical question is a complex one with broad implications, and we are not satisfied - the parties having been afforded the opportunity to advance their full submissions in relation to the appeal - that we have been provided with the degree of assistance necessary to correctly resolve the question. The key issue is whether, once the Respondents notified the dispute concerning the TOM to the Commission in 2015 pursuant to the dispute resolution procedure in the 2012 Agreement, the Respondents and/or its affected members accrued an entitlement to have that dispute resolved to finality by conciliation and/or arbitration in accordance with the terms of the procedure that survived the displacement of the 2012 Agreement by the 2015 Agreement. In relation to that issue, we have not been addressed on any of the general law authorities concerning, for example, the right to receive performance of an accrued contractual obligation after the termination of a contract (see, for example, Westralian Farmers Ltd v Commonwealth Agricultural Service Engineers Ltd) 27 or the right to enforce a private arbitration clause after termination of the contract, nor whether s.739(4) confers on the Commission an ongoing power to arbitrate once the parties have agreed that it may do so in accordance with a term of an enterprise agreement. We note in this connection that the dissenting decision of Deputy President Colman, which we have read in draft form, likewise does not address these matters.

Conclusion

[60] For the reasons set out above, we are not satisfied that it would be in the public interest or otherwise warranted to grant permission to appeal.

[61] Permission to appeal is refused.

Colman DP

[62] On 24 September 2015, Commissioner Riordan issued a decision (2015 Decision) in relation to a dispute arising under the BlueScope Steel Port Kembla Steelworks Agreement 2012 (2012 Agreement). The dispute concerned a proposal by BlueScope Steel (AIS) Pty Ltd (BlueScope) to introduce a ‘trade operator model’ in its Hot Mills business, whereby tradespersons would perform certain tasks of production operators.

[63] The AWU, AMWU and CEPU had referred the dispute to the Commission under s.739 of the Fair Work Act 2009 (Act) and clause 35 of the 2012 Agreement. They invoked the status quo provisions in the Agreement, such that the implementation of the proposal was put in abeyance, pending determination of the dispute by the Commission.

[64] In the 2015 Decision, Commissioner Riordan decided that BlueScope’s proposal was safe, efficient and fair, and that it could therefore be ‘introduced immediately, on the understanding that a review will be undertaken by the FWC in relation to the operation of the new classification and rate of pay in April 2016.’ 28 The trade operator model was then introduced.

[65] April 2016 came and went, and the review did not occur. No steps were taken by the unions, BlueScope, or any relevant employees to have the Commission conduct the review referred to in the 2015 Decision.

[66] On 18 November 2015, the BlueScope Steel Port Kembla Steelworks Agreement 2015 (2015 Agreement) was approved by the Commission. It commenced operation on 25 November 2015. The scope and application clause of the 2015 Agreement is the same as the scope and application clause of the 2012 Agreement. This has the effect that, pursuant to s.58 of the Act, on 25 November 2015, there were no employees to whom the 2012 Agreement applied. As a consequence, pursuant to s.54 of the Act, the 2012 Agreement ceased to operate.

[67] The question of the ‘review’ re-emerged in other proceedings that involved the parties towards the end of 2016. In January 2017, the Commission re-listed the application that had led to the 2015 Decision, for the purposes of conducting the review. BlueScope objected and contended that the application had already been determined. The question of whether the Commission had power to conduct the review was the subject of a hearing before Commissioner Riordan on 30 March 2017.

[68] On 9 June 2017, the Commissioner issued a decision in which he found that the Commission had power to conduct the review in accordance with the 2015 Decision. 29 He determined that the 2015 Decision had not settled the dispute that was referred to the Commission under the 2012 Agreement,30 and that although the title and rates of pay for each classification were set by the 2015 Agreement, the duties, skills and competencies of each classification were not.

[69] BlueScope’s Notice of Appeal advanced eight grounds on which it contends that the Commissioner erred and the appeal should be allowed. The grounds variously contend that the Commission does not have jurisdiction to conduct the review.

[70] I am unable to identify a legal foundation that would allow the Commission to conduct the review contemplated by the 2015 Decision. In my view, the authority of the Commission to conduct the review must derive either from the 2012 Agreement or the 2015 Agreement.

[71] There was no contention that the 2015 Agreement authorised the Commission to conduct the review. The 2012 Agreement conferred on the Commission power to make the 2015 Decision, and presumably would also have provided a basis, subject to the requirements of clause 35 of the 2012 Agreement, to conduct the review. However the 2012 Agreement is no longer in operation. It applies to no-one.

[72] The unions submitted that, even if an enterprise agreement is no longer in operation, it may continue to exist. It was contended that the Act distinguishes between ‘enterprise agreements’ and ‘operative enterprise agreements’. Reference was made to s.182, which states that an agreement is made when it is approved by a valid majority of employees. At that point in time, the enterprise agreement is not in operation, but is, according to the unions, in existence. (In fact, other than in the heading to the provision, s.182 does not refer to enterprise agreements, but to proposed enterprise agreements and ‘agreements’). It was further contended that the fact that an enterprise agreement no longer operates does not mean that it is not still an ‘enterprise agreement’ for the purposes of s.738.

[73] I do not accept that the Act contemplates such a separate mode of legally relevant existence for enterprise agreements. Section 52 defines when an enterprise agreement applies to a person. Section 53 explains when an enterprise agreement covers a person. And s.54 sets out when an enterprise agreement is in operation and when it is not. These provisions comprehensively address the life and death of enterprise agreements. I do not consider that the Act impliedly contemplates any transcendence.

[74] A further difficulty confronting the unions’ argument is the effect of s.51, which states that an enterprise agreement does not impose obligations on a person, and a person does not contravene an enterprise agreement, unless the agreement applies to the person. Ordinarily, an employer, union or employee who did not comply with a decision of the Commission properly made pursuant to a disputes procedure in an enterprise agreement would be in breach of that agreement, and liable to be sued for breach of s.50 of the Act. However, BlueScope is not bound by the 2012 Agreement. Nor is anybody else. It would therefore appear that the outcome of any decision of the Commission purportedly made now under the 2012 Agreement could be ignored.

[75] The unions further contended that, once a court or tribunal is seized of jurisdiction, it cannot subsequently lose it without direct legislative intervention. This argument appears to intersect with the contention that the 2015 Decision stands (no party contends that it was not properly made), and that it has legal effect in its own right in accordance with the Act. However, I do not consider that the Decision, absent the legal foundation of the 2012 Agreement, has any continuing effect. In my view a decision of the Commission under a disputes procedure cannot itself become the source of the Commission’s authority to deal with a dispute.

[76] The unions also submitted that they or their members had an ‘accrued right’ for the review contemplated by the 2015 Decision to be conducted. However, they were not able to identify the legal basis of any such right, whether arising in some way under the general law, under the Act or otherwise.

[77] Section 739(5) provides that the Commission must not make a decision that is inconsistent with a fair work instrument that applies to the parties. The 2015 Agreement is such an instrument. Clause 3.1 of the 2015 Agreement states that the agreement ‘rescinds and replaces the BlueScope Steel Port Kembla Steelworks Agreement 2012.’ As noted earlier, the 2012 Agreement ceased operation by force of the provisions of the Act. But clause 3.1 is important as it disavows any intention that remnants of the earlier instrument survive. In the face of this provision, and the absence of any relevant savings clause, there can be no argument that the dispute that was referred to the Commission under the 2012 Agreement and that was the subject of the 2015 Decision was preserved by the coming into operation of the 2015 Agreement.

[78] Further, s.739(1) states that the section applies if a term referred to in s.738 ‘requires or allows’ the Commission to deal with a dispute. Section 738 refers to terms in enterprise agreements that provide procedures for dealing with disputes. But as noted above, the terms of the 2012 Agreement no longer ‘require or allow’ anything. They do not operate or apply to anyone.

[79] In AWU v MC Labour Services, the Full Bench noted:

‘Section 739 makes clear that the Commission’s function (if any) in dealing with a dispute referred to it under an enterprise agreement depends on the terms of that agreement, and that the parties to the agreement may structure or limit the role of the Commission (or other person).’  31

[80] The relevant terms that structure or limit the role of the Commission in relation to the settlement of disputes are now those of the 2015 Agreement. They do not confer on the Commission authority to conduct the review referred to in the 2015 Decision, a decision made under the 2012 Agreement.

[81] The unions contend that it would be unfair if the review could not take place. They also submit that BlueScope did not raise the above arguments at first instance or in the Notice of Appeal. In my opinion, ground 4 of BlueScope’s Notice of Appeal relates in substance to the issues I have identified above. However, the question of whether the Commission has jurisdiction to conduct the review is not affected by considerations of fairness or pleadings. Jurisdiction either exists or it does not.

[82] I would note in relation to the concern about fairness, however, that the parties were free to preserve the earlier dispute, or its further resolution, or the review, through the 2015 Agreement. That did not occur. Instead the parties agreed that the 2015 Agreement ‘rescinds and replaces’ the 2012 Agreement.

[83] Finally, I would note that the scheme of the Act is that only one enterprise agreement can apply to a particular employee at a particular time. 32 If the Commission is dealing with a dispute under an enterprise agreement that is nearing or has passed its nominal expiry date, and the parties wish to make allowance for the resolution of that dispute in their new agreement, they can do so. If they do not do so, the Commission will cease to be able to deal with the dispute. In this regard, I agree with the observations of Deputy President Asbury in CFMEU v North Goonyella Coal Mines Pty Ltd.33

[84] In my opinion, there is no jurisdictional basis for the Commission to conduct the review contemplated by the 2015 Decision, and the Commissioner’s finding to the contrary was in error. I consider that an error of jurisdiction enlivens the public interest, requiring the Commission to grant permission to appeal under s.604(2). Accordingly, I would grant permission to appeal, uphold the appeal and quash the 2017 Decision.

VICE PRESIDENT

Appearances:

G. Hatcher SC and K. Brotherson, of Counsel, for BlueScope Steel (AIS) Port Kembla.

L. Saunders, of Counsel, for the AMWU and the CEPU.

No appearance for the AWU.

Hearing details:

2017

Sydney:

23 August.

 1   [2017] FWC 2583.

 2   [2015] FWC 6512.

 3   [2015] FWC 6512, [23].

 4   [2017] FWC 335.

 5   [2015] FWCFB 5615.

 6   [2015] FWC 6512, [23].

 7   [2017] FWC 2583, [49].

 8   State of NSW v Kable (2013) CLR 118, [52]. See also Lewski v ASIC [2016] FCAFC 96, [247]; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, [42] per Gray and Downes JJ.

 9   Appellant’s Outline of Submissions, [44].

 10   [2017] FWCFB 3005, [114].

 11   (1936) 55 CLR 499.

 12   ING Administration v Jajoo (PR974301), [34]-[41]; Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2007] AIRCFB 374; Deakin University v S Rametta [2010] FWAFB 4387.

 13   Respondents’ Outline of Submissions, [36].

 14   BlueScope Steel (AIS) Pty Ltd v The Australian Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Manufacturing Workers' Union [2015] FWCFB 5615.

 15   Attorney General (Q) v Australian Industrial Relations Commission & Ors (2002) 213 CLR 485; Stephenson v Senator the Honourable Eric Abetz (Special Minister of State) PR952743 (28 October 2004).

 16   CFMEU V North Goonyella Coal Mines Pty Ltd [2016] FWC 8360; Stephenson v Senator the Honourable Eric Abetz (Special Minister of State) PR952743 (28 October 2004); Pulle v Commonwealth (2009) 190 IR 365; APESMA V Jemena Asset Management Pty Ltd [2013] FWC 5617; CEPU V Jemena Asset Management Pty Ltd [2015] FWC 1189.

 17   Transcript, PN124-129.

 18   Transcript, PN212-213 and 226-230.

 19   [2016] FWC 640.

 20   Fair Work Act 2009 (Cth) s 604(2).

 21   Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [6].

 22   [2010] FWAFB 5343, [27].

 23   Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210, [7].

 24   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481; [2001] FCA 1803; BC200108538.

 25   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, [26] – [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].

 26   See e.g. Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia [2013] FWCFB 4250, [14]; Ferrymen Pty Ltd [2013] FWCFB 8025 at [48]; at [28]; New South Wales Bar Association v McAuliffe [2014] FWCFB 1663, [28].

 27   (1936) 54 CLR 361.

 28   [2015] FWC 6512, [23].

 29   Ibid [47].

 30   Ibid [46].

 31   [2017] FWCFB 5032, [25].

 32   Fair Work Act 2009 (Cth) s 58(1).

 33   [2016] FWC 8360, [21].

Printed by authority of the Commonwealth Government Printer

<PR600255>