1
Fair Work Act 2009
s.604 - Appeal of decisions
Ferrymen Pty Ltd
v
The Maritime Union of Australia
(C2013/5945)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT BOOTH
COMMISSIONER MCKENNA
MELBOURNE, 17 DECEMBER 2013
Appeal against decision [2013] FWC 5848 of Deputy President Sams at Sydney on 19 August
2013 in matter number C2012/6579 - s.206 Fair Work Act 2009 (Cth) - same result as that
arrived at in the decision subject to appeal - lack of utility - permission to appeal refused.
[1] Ferrymen Pty Ltd (Ferrymen) provides wire drawn ferry services under contract, at
various locations in New South Wales. Wire drawn ferries generally operate in regional areas
to connect two public roads separated by a river. Ferry operators enter into contracts for such
services - including fares for passengers and vehicles, and hours of operation - with local
councils or Road & Maritime Services of NSW. In providing these services Ferrymen
employs about 80 employees under the terms of the FPL Enterprise Agreement (the FPL
Agreement). The FPL Agreement was approved by Commissioner Raffaelli on 6 July 2010
and commenced operation on 13 July 2010.1 The nominal expiry date of the FPL Agreement
is 13 July 2014.
[2] In December 2012 Ferrymen lodged an application pursuant to s.739 of the Fair Work
Act 2009 (Cth) (the Act) for Fair Work Australia (now the Fair Work Commission) to deal
with a dispute in accordance with the dispute settlement term in the FPL Agreement.
Clause 20 of the FPL Agreement deals with, relevantly, disputes relating to ‘a matter arising
under the agreement’. Clause 20.(2)C deals with the Commission’s role in resolving such
disputes:
“... C. Fair Work Australia may deal with the dispute in 2 stages:
(a) Fair Work Australia will first attempt to resolve the dispute as it considers
appropriate, including any mediation, conciliation, expressing an opinion or making a
recommendation; and
(b) If Fair Work Australia is unable to resolve the dispute at the first stage, Fair
Work Australia may then:
[2013] FWCFB 8025
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 8025
2
(i) Arbitrate the dispute; and
(ii) Make a determination that is binding on the parties.
Note: If Fair Work Australia arbitrates the dispute, it may also use the powers that are
available to it under the Act.
A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the
purposes of Div 3 of Part 5.1 of the Act. Therefore an appeal may be made against the
decision.”
[3] The dispute was not resolved by conciliation and proceeded to arbitration. The dispute
concerned the proper interpretation of two clauses of the FPL Agreement. Only one aspect of
the dispute is the subject of this appeal, namely, the proper interpretation of clause 12(2):
“12. Wage Increases
(1) The applicable base weekly wage will increase each year on the anniversary date of
the commencement of this Agreement by the Consumer Price Index number for
Sydney (all groups) for the year as recorded in the quarter preceding the
commencement of this agreement. If the Agreement commences in June, the
preceding quarter will be the March quarter.
(2) During the Term of this Agreement the base hourly rate for all employees shall remain
equal to or above the Australian Pay and Classification Scales (APCS) as determined
by the Australian Fair Pay Commission (AFPC) or other designated Government
body.”
[4] In a decision issued on 19 August 20132 Deputy President Sams determined the
dispute as follows:
“[158] ... I find firstly, that the Union’s interpretation of cl 12(2) is to be preferred over the
interpretation proposed by Ferrymen. Specifically cl 12(2) shall be read as meaning the base
hourly rates for all employees covered by the Agreement shall remain equal to or above the
transitional rates in the relevant Modern Award, namely, the Ports, Harbours, Enclosed Water
Vessels Award 2010. ....”3
[5] Ferrymen has appealed this aspect of the Deputy President’s decision. We turn first to
the nature of the appeal.
[6] In AMWU v Silcar Pty Ltd (Silcar)4 a Full Bench considered whether the dispute
resolution procedure in the agreement in that case gave rise to an independent right of appeal
(and therefore was not subject to permission to appeal) or whether it merely provided for an
appeal in accordance with the appeal processes in the Act, such that permission to appeal was
required.
[7] The dispute resolution procedure in the Silcar agreement provided as follows:
“The decision of FWA will bind the parties, subject to either party exercising a right of appeal
against the decision to a Full Bench.”
[8] The Full Bench concluded that the above clause created an independent right of appeal
for which permission to appeal was not required.5 Clause 20.(2)C of the FPL Agreement is
expressed in quite different terms. It provides, relevantly:
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“A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the
purposes of Div 3 of Part 5.1 of the Act. Therefore an appeal may be made against the
decision.”
[9] Section 604, dealing with appeals, is in Division 3 of Part 5-1 of the Act. It is
common ground that the purpose of clause 20.(2)C of the FPL Agreement is to invoke the
operation of s.604 such that permission to appeal is required. Section 604 reads:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert
Panel); or
(b) made by the General Manager (including a delegate of the General
Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if
the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see
section 400).
(3) A person may appeal the decision by applying to the FWC.”
[10] The Explanatory Memorandum to what is now s.604 reads as follows:
“2327. The concept of permission in the Bill is intended to replace the concept of leave
currently in the WR Act, using more modern terminology. Other than in the special case of
subclause 604(2), the grounds for granting permission to appeal are not specified. It is
intended that this would call up all the existing jurisprudence about granting leave to appeal –
see e.g., Construction, Forestry, Mining and Energy Union v Australian Industrial Relations
Commission (1998) 89 FCR 200; and Wan v Australian Industrial Relations Commission
(2001) 116 FCR 481.
2328. Subject to the appellant demonstrating an arguable case of appealable error, it is
intended that FWA should have a broad discretion as to the circumstances in which it can
grant permission to appeal. Some examples of 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.
2329. However, subclause 604(2) requires FWA to grant permission to appeal the decision if
FWA is satisfied that it is in the public interest to do so.”
[11] In Wan the Full Federal Court made the following observation regarding the operation
of s.45 of the then Workplace Relations Act 1996 (Cth) (the WR Act), a statutory predecessor
to s.604:
“30. Section 45 does not specify grounds for granting leave to appeal other than in the special
case referred to in s 45(2). As we have previously observed, grounds traditionally adopted in
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granting leave have included considerations such as whether the decision is attended with
sufficient doubt to warrant its reconsideration and whether substantial injustice may result if
leave is refused. These “grounds” should not be seen as fetters upon the broad discretion
conferred by s 45(1), but as examples of circumstances which will usually be treated as
justifying the grant of leave. It will rarely, if ever, be appropriate to grant leave unless an
arguable case of appealable error is demonstrated. This is so simply because an appeal cannot
succeed in the absence of appealable error.” 6
[12] Given the similarities between s.45 of the WR Act and s.604 of the Act the
observations in Wan are still apposite.
[13] The decision subject to appeal concerned the determination of an application to deal
with a dispute pursuant to s.739 of the Act, which reads:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal
with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an
employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other
written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with
the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an
enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or
76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate
(however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a
recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this
Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[14] The Deputy President’s power to determine the dispute as to the proper interpretation
of clause 12(2) of the FPL Agreement was conditioned by the dispute settlement term in the
FPL Agreement and s.739 of the Act. It is common ground that the Deputy President had
jurisdiction to determine the dispute pursuant to clause 20.(2)C of the FPL Agreement and
s.739(4). The Deputy President’s jurisdiction to arbitrate the dispute was, of course, also
conditioned by the provisions of s.739(5). Importantly, s.739(5) provides that in arbitrating a
dispute the Commission ‘must not make a decision that is inconsistent with [the] Act’.
[15] The limitation in s.739(5) is enlivened in this case because of the operation of s.206.
Section 206 ensures that the base rate of pay under an enterprise agreement must not be less
than the base rate of pay under the relevant modern award:
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“206 Base rate of pay under an enterprise agreement must not be less than the modern
award rate or the national minimum wage order rate etc.
If an employee is covered by a modern award that is in operation
(1) If:
(a) an enterprise agreement applies to an employee; and
(b) a modern award that is in operation covers the employee;
the base rate of pay payable to the employee under the agreement (the agreement rate) must
not be less than the base rate of pay that would be payable to the employee under the modern
award (the award rate) if the modern award applied to the employee.
(2) If the agreement rate is less than the award rate, the agreement has effect in relation to the
employee as if the agreement rate were equal to the award rate.
If an employer is required to pay an employee the national minimum wage etc.
(3) If:
(a) an enterprise agreement applies to an employee; and
(b) the employee is not covered by a modern award that is in operation; and
(c) a national minimum wage order would, but for the agreement applying to the
employee, require the employee’s employer to pay the employee a base rate of pay
(the employee’s order rate) that at least equals the national minimum wage, or a
special national minimum wage, set by the order;
the base rate of pay payable to the employee under the enterprise agreement (the agreement
rate) must not be less than the employee’s order rate.
(4) If the agreement rate is less than the employee’s order rate, the agreement has effect in
relation to the employee as if the agreement rate were equal to the employee’s order rate.”
[16] Section 206 provides a limited exception to the general rule about the interaction
between modern awards and enterprise agreements, as set out in s.57:
“57 Interaction between modern awards and enterprise agreements
(1) A modern award does not apply to an employee in relation to particular employment at a
time when an enterprise agreement applies to the employee in relation to that employment.
(2) If a modern award does not apply to an employee in relation to particular employment
because of subsection (1), the award does not apply to an employer, or an employee
organisation, in relation to the employee.”
[17] The Explanatory Memorandum to what became s.57 deals with the interaction
between ss.57 and 206:
“Clause 57 - Interaction between modern awards and enterprise agreements
218. This clause provides for the interaction between a modern award and an enterprise
agreement that each cover an employee in relation to particular employment at the same time.
219. Subclause 57(1) provides that a modern award does not apply to an employee in
relation to particular employment at a time when an enterprise agreement applies to the
employee in relation to that employment. The effect of this subclause is that an agreement
that is inoperation and covers an employee determines the employees’ rights and obligations
in relation to particular employment, even if an award covers the employee in relation to that
employment.
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220. This subclause highlights the difference between when an agreement covers an
employee and when it applies to an employee. An employee may be covered by both a
modern award and an enterprise agreement in relation to particular employment at the same
time, however, both types of industrial instrument cannot apply to an employee in relation to
that particular employment at the same time.
Clause 206 provides a limited exception to this rule: where an enterprise agreement contains
a base rate of pay for an employee that is less than the base rate of pay that would apply to
that employee under an award that covers them, the base rate of pay from the award is taken
to be a term of the agreement.”
[18] The effect of s.206(2) is that despite any clause in an enterprise agreement the base
rate of pay in the agreement must not be less than the base rate of pay under the relevant
modern award. For the reasons which follow the Ports, Harbours and Enclosed Waters
Vessels Award 2010 (the Ports modern award) covers FPL employees engaged in the
provision of wire drawn ferry services. Hence, despite any clause in the FPL Agreement the
base rate of pay payable to the FPL employees must not be less than the transitional rates in
the Ports modern award.
[19] The limitation in s.739(5) and the effect of s.206 were not the subject of any
substantive consideration in the proceedings at first instance. Importantly, however, the
operation of those provisions effectively mandated the outcome of the dispute. That is
because any construction of clause 12(2) could not result in an outcome whereby the base rate
of pay payable to the employees covered by the FPL Agreement was less than the transitional
rates in the Ports modern award. Independently of any consideration of s.739(5) and s.206,
the Deputy President reached the same conclusion based on his interpretation of clause 12(2).
In these circumstances we see no utility in granting permission to appeal.
[20] We now turn to the various instruments which have regulated the base rate of pay of
the FPL employees.
[21] Prior to the making of the Ports modern award FPL employees engaging in operating
wire drawn ferries were covered by the terms of an award of the Industrial Relations
Commission of New South Wales titled the Wire Drawn Ferries (State) Award (the State
Award). Immediately prior to the commencement of the Ports modern award, the minimum
wages of the relevant FPL employees were determined by the Australian Pay and
Classification Scales (APCS) derived from the State Award. APCSs were industrial
instruments notionally created on 27 March 2006 by operation of the Workplace Relations
Amendment (Work Choices) Act 2005 (Cth) from minimum wage instruments which existed
in or transferred to the federal system at that time. Minimum wage instruments included
federal pre-reform awards and former State awards (see post-Work Choices WR Act,
subdivision I of Division 2, Part 7). These instruments were ‘notional’; they were not
physical documents.
[22] Preserved APCSs did not contain all provisions that were in the instruments from
which they were derived. Section 208 of the then WR Act specified that they would derive
from each instrument:
‘basic periodic rates of pay’, which had to be paid for the employee’s
‘guaranteed hours’;
‘basic piece rates of pay’ (if any);
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casual loadings (if any);
classifications;
provisions in relation to employees to whom training arrangements apply that
determine that time spent off the-job training are payable as part of the basic periodic
rate of payment;
frequency of payment (if any); and/or
coverage.
[23] A ‘basic periodic rate of pay’ under s.178 of the WR Act was defined as a rate of pay
for a period worked (however the rate was described) ‘that does not include incentive-based
payments and bonuses, loadings, monetary allowances, penalty rates, or any other similar
separately identifiable entitlements’. Therefore, such items did not form part of preserved
APCSs but where permissible they were retained as entitlements under the relevant
transitional instrument, which for former State award employees was a notional agreement
preserving a State award (NAPSA).
[24] APCSs operated from 27 March 2006 until 30 June 2009. During this time, the then
Australian Fair Pay Commission (AFPC) had power under s.216 of the WR Act to adjust
preserved APCSs. All the AFPC’s annual decisions (except for its 2009 decision which
afforded no increases) flowed on increases to preserved APCSs. The AFPC did not, however,
publish adjusted rates.
[25] From 1 July 2009, by item 5 of Schedule 9 of the Fair Work (Transitional Provisions
and Consequential Amendments) Act 2009 (Cth) (the Transitional Act), the terms of APCSs
were preserved as ‘transitional APCSs’. The AFPC ceased operation on 31 July 2009 and no
longer adjusted these instruments.
[26] Fair Work Australia (now the Fair Work Commission) was established on 1 July 2009
and from 1 January 2010 had power to adjust transitional APCSs as part of the annual wage
review process (see item 10(2) of Schedule 9 of the Transitional Act). These powers
commenced from 1 January 2010 as the Commission’s7 power to undertake annual wage
reviews under ss.282–299 of the Act commenced on 1 January 2010. The Commission’s first
(and subsequent) decisions have flowed on the increases granted for modern awards to
transitional APCSs.
[27] The Ports modern award was made as part of Stage 3 of the award modernisation
proceedings under item 2 of Schedule 5 to the Transitional Act. Matter AM2008/49
considered federal and former State awards in the Port and harbour services industry for
modernisation. The NAPSA derived from the Wire Drawn Ferries (State) Award (Wire
Drawn Ferries NAPSA) was listed in Attachment B to the Statement issued on 30 January
20098 as an instrument to be considered in the making of any modern award arising from this
process. Submissions from the Australian Federation of Employers and Industry on 12 June
2009 and later (in relation to Transitional Provisions) on 23 October 2009 expressly referred
to the Wire Drawn Ferries NAPSA. On 4 September 2009 the Ports modern award was made
(and later came into operation on 1 January 2010). A subsequent decision9 of the Full Bench
confirms that the Ports modern award was intended to replace the Wire Drawn Ferries
NAPSA:
“We recognise the impact of the wage rates we have established for [the Ports modern award]
on employers covered by the Motor Ferries State Award and the Wire Drawn Ferries (State)
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Award. However a consideration of the wage rates for all current awards has led us to the
conclusion that the rates we have adopted are more representative of rates in existing
minimum rates prescriptions. Transitional arrangements will ameliorate the impact to some
extent.”10
[28] Clause 4.1 of the Ports modern award reads:
“This award covers employers throughout Australia in the ports, harbours and enclosed water
vessels industry and their employees in the classifications listed in clause 13 to the exclusion
of any other modern award.
. . .
For the purpose of clause 4.1, ports, harbours and enclosed water vessels industry means
the operation of vessels of any type wholly or substantially within a port, harbour or other
body of water within the Australian coastline or at sea on activities not covered by the above
awards.”
[29] The classifications in clause 13 include ‘Master’ however this is not defined
elsewhere.
[30] Item 11 of Schedule 9 to the Transitional Act provides that:
“A transitional APCS ceases to cover an employee when a modern award that covers
the employee comes into operation.”
[31] Accordingly, after 1 January 2010 the Wire Drawn Ferries NAPSA could not cover
the relevant FPL employees as the Ports modern award had come into operation.
[32] Under item 3 of Schedule 5 to the Transitional Act, the Commission is required to
terminate ‘modernisable’ instruments as soon as practicable after modern awards have come
into operation (with modernisable instruments including NAPSAs and APCSs). During
proceedings in late 2010 to 2011, the Commission published a list of those instruments that it
considered had been replaced by modern awards and outlined the process for their
termination. This process included calling for submissions from any parties who considered a
particular instrument was still operating, that is it still covered employees.11 No submissions
were made objecting to the termination of the Wire Drawn Ferries NAPSA and APCS, and on
26 July 2011 Vice President Watson issued an order as follows:
“It is ordered that the Wire Drawn Ferries (State) Award is terminated insofar as it
operates as a notional agreement preserving a State award and any related
transitional Australian Pay and Classification Scale.”
[33] This order came into operation on 27 July 2011.12
[34] While the Ports modern award came into operation on 1 January 2010, and from that
date covered the class of employees covered by the FPL Agreement, the transitional provision
in clause A.2.3 of the modern award reads:
“Prior to the first full pay period on or after 1 July 2010 the employer must pay no less
than the minimum wage in the relevant transitional minimum wage instrument and/or
award-based transitional instrument for the classification concerned.”
http://www.fwc.gov.au/documents/modern_awards/award/ma000052/ma000052-17.htm#P283_26204
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[35] Transitional provisions were included in modern awards to permit employers to phase-
in increases in minimum wages over five years.13
[36] When making the Ports modern award the Full Bench acknowledged the significant
difference in the rates of pay for a Master in the modern award and the rates in the Wire
Drawn Ferries transitional APCS and NAPSA. This difference of around $124 per week
needed to be phased in over five years from 1 July 2010. This phasing means that the base
rate of pay for an employee transitioning into the modern award from the Wire Drawn Ferries
NAPSA is increased by both the Minimum Wage Panel increase plus the $24.84 ($124.22/5)
transitional increase each year for five years.
[37] When the FPL Agreement was approved, the better off overall test would have been
applied to the agreement under s.193(1) of the Act:
“193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall
test under this section if the FWC is satisfied, as at the test time, that each award covered
employee, and each prospective award covered employee, for the agreement would be better
off overall if the agreement applied to the employee than if the relevant modern award applied
to the employee.”
[38] ‘Test time’ is defined in s.193(6) as the time the application for approval of the
agreement was made i.e. the date of lodgement which was 23 June 2010.
[39] At test time the relevant modern award was the Ports modern award. This award came
into operation on 1 January 2010 and from that date covered the class of employees covered
by the FPL Agreement.
[40] The transitional rates in the Ports modern award for employees previously covered by
the Wire Drawn Ferries NAPSA are set out at Attachment A to this decision.
[41] The relevant transitional instrument was the APCS derived from the State Award.
Therefore while the FPL employees were covered by the modern award from 1 January 2010,
their rates of pay as at 23 June 2010 (at test time) were derived from the APCS.
[42] A draft document canvassing the matters set out at paragraphs [21] to [41] above was
provided to the parties prior to the hearing of the appeal. Neither party took issue with the
factual matters we have set out. Nor did Ferrymen contest the proposition that the effect of
s.206(2) is that despite any clause in the FPL Agreement the base rate of pay payable to the
FPL employees must not be less than the transitional rates in the Ports modern award. In such
circumstances the proper construction of clause 12.2 becomes largely irrelevant because the
issue is determined by the Act, irrespective of the proper construction of clause 12.2.
Ferrymen resisted this analysis on three principal bases. First, it was submitted that these
issues were not the matter in dispute between the parties. During the course of oral argument
counsel for Ferrymen put it this way:
“...we say whilst that may be a very compelling interpretation of that provision, that’s
not the dispute that arose between the parties.”14
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[43] We accept that the application of s.206 to the circumstances of this matter was not the
dispute between the parties. The dispute concerned the proper interpretation of clause 12(2) of
the FPL Agreement. Nevertheless, the Deputy President’s power to determine that dispute
was necessarily conditioned by s.739(5). In arbitrating the dispute the Deputy President could
not make a decision that was inconsistent with the Act. In this regard, and as we have noted
earlier, the operation of the Act, and in particular s.206, means the base rate of pay under the
FPL Agreement must not be less than the transitional rates in the Ports modern award. This
issue was not put squarely to the Deputy President in the proceedings below, but the
application of s.206 means that even if he had accepted Ferrymen’s argument as to the
construction of clause 12(2), the result would still be that the base hourly rates for all
employees covered by the FPL Agreement must be no less than the transitional rates in the
Ports modern award.
[44] The second proposition advanced by Ferrymen was that the Act neither requires nor
permits the Commission to form an opinion as to the application of s.206 of the Act. It was
submitted that expressing an opinion as to the operation of s.206 would impermissibly amount
to purporting to exercise a form of declaratory power. It was further submitted that as any
such a decision in this regard otherwise would not be a decision comprehended by the dispute
settling term, the Commission would have no jurisdiction to express it and the parties would
not be bound by any opinion so expressed. We reject each of these propositions.
[45] We make it clear that we are not purporting to exercise declaratory power or grant
declaratory relief. Rather, we are forming an opinion as to the existing legal rights of the
parties (consequent upon the interaction of s.206 and s.739(5)) as a step in our consideration
of whether to grant permission to appeal. The formation of such an opinion for that purpose is
clearly permissible.15 Further, for reasons already expressed, it is inherently necessary to form
an opinion about the application of s.206 in order to determine the limits of the Commission’s
power under the dispute settlement term in the FPL Agreement. It follows that the formation
of such an opinion is an incident of the power of private arbitration conferred by the FPL
Agreement.16
[46] The third proposition advanced by Ferrymen was that in order to engage s.206 there
would need to be a conclusion that the Ports modern award covered the FPL employees
engaged in the provision of wire drawn ferry services. It was submitted that such a
conclusion would conflict with the decision made by the Commission to approve the FPL
Agreement, as that decision was made on the premise that the Ports modern award did not
apply; and would have the effect of varying or revoking the FPL Agreement. In this regard, it
was submitted the power to vary or revoke an agreement exists only in s.603(b) (which we
take to be intended as a reference to s.603(3)(b)) and the parties have not conferred any
jurisdiction pursuant to clause 20 of the FPL Agreement to revoke or vary any provision of
that agreement.
[47] Section 603 of the Act deals with varying and revoking decisions of the Commission,
either by the Commission on its own initiative or on application. Section 603(3)(b) provides
that the Commission must not vary or revoke certain decisions, including enterprise
agreement decisions. There is no substance to the contention that any conclusion we make as
to the application of the Ports modern award would have the effect of varying or revoking the
decision of Commissioner Raffaelli to approve the FPL Agreement. Our decision has
[2013] FWCFB 8025
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involved a consideration of the overarching operation of s.204 and s.739(5) in the context of
the question of utility in granting permission to appeal the decision of the Deputy President.
[48] We have decided to refuse permission to appeal. In our view there is no utility in
granting permission to appeal. Even if the approach taken by the Deputy President was
erroneous, the end result would be the same as that which we have reached, albeit by a
different route. By operation of s.206 and s.739(5) the base rate of pay payable to the
employees covered by the FPL Agreement cannot be less than the transitional rates in the
Ports modern award. Lack of utility is a well-established basis for the refusal of permission to
appeal.17 The lack of a useful result is also a well-recognised basis for refusing prerogative (or
constitutional) relief.18
[49] Permission to appeal is refused.
PRESIDENT
Appearances:
A. Moses SC and C. Magee of counsel for Ferrymen Pty Ltd
L. Doust of counsel and A. Neal for The Maritime Union of Australia
Hearing details:
2013:
Sydney:
November, 19
Printed by authority of the Commonwealth Government Printer
Price code C, PR543212
[2013] FWCFB 8025
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ATTACHMENT A
TRANSITIONAL RATES IN THE PORTS MODERN AWARD FOR EMPLOYEES PREVIOUSLY
COVERED BY THE WIRE DRAWN FERRIES NAPSA
Decision
Increase
granted
Date of
operation
APCS Rate
per week -
Master/
Engine
Driver
Modern
award rate
– Master
Transitional
amount for
purpose of
cl. A.2.4 of
modern
award
Rate for
Master
transitioning
from Wire
Drawn Ferries
APCS (b)
$ $ $ $
State Wage Case 2004 (NSW) + $17 8 July 2005 550.80
APCS derived from State award
27 March
2006
550.80
AFPC Wage-setting decision 2006 + $27.36 1 Dec 2006 578.16
AFPC additional increase to
compensate for wages not
adjusted in line with 2005 Safety
Net Increase (c)
+ $17 1 Dec 2006 595.16
AFPC Wage-setting decision 2007 + $10.26 1 Oct 2007 605.42
AFPC Wage-setting decision 2008 + $21.66 1 Oct 2008 627.08
AFPC Wage-setting decision 2009 no
increase
Modern award made 1 Jan 2010
(d)
627.08 751.30 124.22
FWA Minimum Wage decision + $26.00 1 July 2010 777.30 677.92
FWA Minimum Wage decision + 3.4% 1 July 2011 803.70 729.17
FWA Minimum Wage decision + 2.9% 1 July 2012 827.00 777.31
FWC Minimum Wage decision + 2.6% 1 July 2013 848.50 823.66
1 July 2014
modern
award rate
(a) Clause A.2.1(b) provides that the rates apply to both employees previously covered by a NAPSA
and those who would have been covered, if not for the operation of an agreement
(b) This rate is calculated by adding 20% of transitional amount plus minimum wage increase each
year for 5 years
(c) In accordance with Workplace Relations Regulation 7.7 – Adjustments to incorporate 2005 Safety
Net Review — other matters
(d) In accordance with clause A.2.3 prior to the first full pay period on or after 1 July 2010 rate in the
modern award did not apply to employees who were previously covered by an APCS
[2013] FWCFB 8025
13
1 [2010] FWAA 4947
2 [2013] FWC 5848
3 Ibid at [158]
4 [2011] FWAFB 2555
5 Also see Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths
Limited T/A Woolworths [2013] FWCFB 2814
6 (2001) 116 FCR 481 at 30.
7 For convenience, we refer to what was then Fair Work Australia as ‘the Commission’.
8 [2009] AIRCFB 100
9 [2009] AIRCFB 826
10 Ibid at [221]
11 See Full Bench decisions issued on 22 December 2010 [2010] FWAFB 9916 and 16 June 2011 [2011] FWAFB 3773
12 See AN120650 PR512090
13 See Full Bench decisions of 2 September 2009 [2009] AIRCFB 800 and 3 December 2009 [2009] AIRCFB 943
14 Transcript, 19 November 2013 at PN347
15 See Re Cram; Ex Parte Newcastle Wallsend Coal Company Pty Ltd (1987) 163 CLR 140 at 149
16 See Linfox Australia Pty Ltd v Transport Workers Union of Australia [2013] FCA 659 at [22] to [33]
17 For example see Bechtal Construction (Australia) Pty Ltd v Maritime Union of Australia [2013] FWCFB 4250
18 See SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; Gardner and another v Dairy Industry
Authority of NSW (1977) 18 ALR 55; Transport Workers Union of NSW v AIRC (2008) 171 IR 84
