1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Mining and Energy Union
v
Kestrel Coal Pty Ltd
(C2014/7023)
SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER CAMBRIDGE SYDNEY, 17 APRIL 2015
Appeal against decision of Senior Deputy President Hamberger at Sydney on 30 September
2014 in matter number C2014/6512 - refusal to grant order under s.532 of the Fair Work Act
2009 - appeal filed out of time - application for extension of time refused.
[1] This is an appeal against a decision of Senior Deputy President Hamberger, in which
he dismissed an application by the Construction, Forestry, Mining and Energy Union (the
CFMEU or the appellant) for an order directed to Kestrel Coal Pty Ltd (Kestrel) under s.532
of the Fair Work Act 2009 (Cth) (the Act).
[2] The orders which were sought by the union related to proposed dismissals at the
Kestrel mine in Emerald in the State of Queensland. There is no issue that the CFMEU had
standing to make application for orders under s.532. The relevant provisions of the Act are
contained in Division 2 of Part 3-6, which is titled “Notification and consultation relating to
certain dismissals”. Sections 531 and 532 should be reproduced. They are in the following
terms:
“Subdivision B—Failure to notify or consult registered employee associations
531 FWC may make orders where failure to notify or consult registered
employee associations about dismissals
(1) The FWC may make an order under subsection 532(1) if it is satisfied that:
(a) an employer has decided to dismiss 15 or more employees for reasons of an
economic, technological, structural or similar nature, or for reasons including
such reasons; and
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DECISION
E AUSTRALIA FairWork Commission
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(b) the employer has not complied with subsection (2) (which deals with
notifying relevant registered employee associations) or subsection (3) (which
deals with consulting relevant registered employee associations); and
(c) the employer could reasonably be expected to have known, when he or she
made the decision, that one or more of the employees were members of a
registered employee association.
Notifying relevant registered employee associations
(2) An employer complies with this subsection if:
(a) the employer notifies each registered employee association of which any of
the employees was a member, and that was entitled to represent the
industrial interests of that member, of the following:
(i) the proposed dismissals and the reasons for them;
(ii) the number and categories of employees likely to be affected;
(iii) the time when, or the period over which, the employer intends to carry
out the dismissals; and
(b) the notice is given:
(i) as soon as practicable after making the decision; and
(ii) before dismissing an employee in accordance with the decision.
Consulting relevant registered employee associations
(3) An employer complies with this subsection if:
(a) the employer gives each registered employee association of which any of the
employees was a member, and that was entitled to represent the industrial
interests of that member, an opportunity to consult the employer on:
(i) measures to avert or minimise the proposed dismissals; and
(ii) measures (such as finding alternative employment) to mitigate the
adverse effects of the proposed dismissals; and
(b) the opportunity is given:
(i) as soon as practicable after making the decision; and
(ii) before dismissing an employee in accordance with the decision.
532 Orders that the FWC may make
(1) The FWC may make whatever orders it considers appropriate, in the public
interest, to put:
(a) the employees; and
(b) each registered employee association referred to in paragraph 531(2)(a) or
(3)(a);
in the same position (as nearly as can be done) as if the employer had complied
with subsections 531(2) and (3).
(2) The FWC must not, under subsection (1), make orders for any of the following:
(a) reinstatement of an employee;
(b) withdrawal of a notice of dismissal if the notice period has not expired;
(c) payment of an amount in lieu of reinstatement;
(d) payment of severance pay;
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(e) disclosure of confidential information or commercially sensitive information
relating to the employer, unless the recipient of such information gives an
enforceable undertaking not to disclose the information to any other person;
(f) disclosure of personal information relating to a particular employee, unless
the employee has given written consent to the disclosure of the information
and the disclosure is in accordance with that consent.”
The application and the hearing before the Senior Deputy President
[3] The CFMEU filed the application on 25 September 2014. A letter which accompanied
it indicated that the redundancies, the subject of the application, were to be implemented “in
or about late September 2014”. A request was made for the matter to be listed in Brisbane on
an urgent basis on the “first available date after 11am on Monday 29 September 2014”.
[4] The matter was listed for hearing on 30 September 2014. At the time the notice of
listing was dispatched, the CFMEU complained both about the time of the hearing and the
fact that it was to be conducted by way of a video link. None of the grounds of appeal or
submissions made by the CFMEU refers to this matter, so there is no need for us to comment
upon it further.
[5] Mr Walkaden appeared before His Honour for the CFMEU and Mr Smith appeared for
Kestrel. A witness statement of Mr Christopher Brodsky, District Vice President of the
CFMEU, was tendered. Mr Brodsky gave oral evidence and was cross-examined. A witness
statement of Mr Jonathan Lawler, Manager Human Resources, was tendered by Kestrel. Mr
Lawler gave oral evidence and was cross-examined. We observe that the statements of both
witnesses are detailed and annex numerous documents. They contain copies of many
exchanges between the union and Kestrel by both email and correspondence between 1
September 2014 and 24 September 2014. Details are also given of three consultation meetings
between the CFMEU and Kestrel held on 4 September, 10 September and 23 September
2014. The evidence addressed the matters discussed at each of those meetings. Details were
also given of employee crew briefings that were conducted throughout the relevant period.
The evidence included meeting agendas, notes of discussions, copies of memoranda, slides
and organisational charts. It also addressed the documentation which was requested by the
CFMEU and that which was provided by Kestrel.
[6] Detailed submissions were made to His Honour concerning the construction of ss.531
and 532, findings he should make on the evidence and why he should exercise his discretion
to make the orders sought by the CFMEU.
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[7] At the conclusion of the hearing, His Honour noted that both parties wished for him to
make an immediate decision in the matter and he proposed to do so. He then announced his
decision in transcript. No separate decision was subsequently published.
[8] The Senior Deputy President referred to the provisions of s.531 and indicated that
before any orders could be made, he needed to consider whether Kestrel had complied with its
obligations under both ss.531(2) and 531(3). His Honour referred to s.531(2) and the evidence
and found Kestrel had complied with its obligations under that subsection. He then referred to
s.531(3) and found Kestrel had given the CFMEU an opportunity to consult with it over
measures to avert or minimise the proposed dismissals, as well as measures to mitigate the
adverse effects of the proposed dismissals. In doing so, he noted the evidence of Kestrel
“explicitly” inviting Mr Brodsky to suggest such measures in an email message to him sent
very soon after the decision that redundancies may be necessary. He also referred to the three
meetings where the union had put forward possible measures such as alternative ways for
achieving cost reductions, the use of voluntary redundancy and reductions in the use of
contractors. He said he was satisfied, based on the evidence, that Kestrel gave due
consideration to these suggestions and provided a response to them. He concluded that
Kestrel had complied with its obligations under s.531 of the Act and therefore he had no
jurisdiction to make any of the orders that the CFMEU had sought. He dismissed the
application.
[9] At the conclusion of the hearing, Mr Walkaden asked if the reasons given in transcript
were His Honour’s reasons or if he was going to provide further reasons. His Honour advised
they were his reasons. The matter was then adjourned.
This appeal
[10] On 3 November 2014, the appellant filed a notice of appeal. Rule 56(2) of the Fair
Work Commission Rules 2013 relevantly provides that a notice of appeal under s.604 must be
filed within 21 calendar days after the date of the decision the subject of the appeal or within
such further time allowed by the Fair Work Commission (the Commission) on application by
the appellant. The appellant’s notice of appeal was filed 13 days out of time. It seeks an
extension of time for filing of the appeal and the respondent opposes any extension being
granted.
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[11] The usual principles applying to the consideration of an application to extend time to
lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland1 as
follows:
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of
course. There are sound administrative and industrial reasons for setting a limit to the
time for bringing an appeal and it should only be extended where there are good
reasons for doing so. The authorities indicate that the following matters are relevant to
the exercise of the Tribunal's discretion under Rule 56(2)(c):
• whether there is a satisfactory reason for the delay;
• the length of the delay;
• the nature of the grounds of appeal and the likelihood that one or more of
those grounds being upheld if time was extended; and
• any prejudice to the respondent if time were extended.”
[12] We first turn to the reasons given by the CFMEU for the delay in filing the notice of
appeal.
[13] The appellant identifies a delay in obtaining the transcript of the proceedings before
His Honour of 30 September 2014 as the reason for the delay. Why this was so is explained in
an affidavit of Mr Walkaden dated 3 November 2014. We have taken all of the matters
deposed to in that affidavit into account. In short, Mr Walkaden refers to email
communications between the appellant and His Honour’s chambers concerning the
appellant’s request that the transcript be ordered so that it could properly consider the 30
September 2014 decision. On 7 October 2014, the appellant was advised that His Honour did
not intend to order the transcript. Subsequently, having raised this matter again with His
Honour’s chambers, Mr Walkaden relied on advice he was given on 9 October 2014 that the
transcript would be ordered and would likely be received in about 3 days or so. However, by
17 October 2014, it had not been received. No further correspondence with His Honour’s
chambers is referred to. After a directions hearing before Vice President Hatcher on 3
November 2014, the appellant purchased the transcript.
[14] By 21 October 2014, which was known as being the last day for filing the appeal, Mr
Walkaden had decided that his reliance upon being provided with a copy of the transcript
“had been misplaced”. His affidavit deposes to commitments he had in a hearing in Newcastle
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on 21 and 22 October 2014 and another hearing in Mackay on 29 and 30 October 2014. He
indicated he was absent from work on 31 October 2014.
[15] We agree with Kestrel that the explanation for the delay is not satisfactory. The
appellant is a sophisticated and experienced litigant and Mr Walkaden a competent and
experienced advocate. We are confident that the time limits which applied were well-known,
as was the importance of complying with those time limits. There could be no assumption an
extension of time for filing the notice of appeal would be given.
[16] There is no general practice in the Commission of a member ordering transcript.
Indeed, in recent times it has become more uncommon for that to occur. At no time was there
any constraint on the appellant ordering the transcript itself.
[17] It was open for the appellant, on or before 21 October 2014, to file a notice of appeal
with such grounds as it was able to draft. The reasons for His Honour’s decision were known
from 30 September 2014, as was the fact he did not intend to publish any further reasons. The
rulings he had made were clear and, in our opinion, adequate to enable a notice of appeal to
be filed within the time limits set for doing so.
[18] Finally, we agree with the submission of Kestrel that the need to attend other hearings
in Newcastle and Mackay does not constitute an adequate explanation for the delay. The
CFMEU had other legal and industrial representatives and access to external solicitors. There
is no reason given as to why no other person was able to file a notice of appeal.
[19] We now consider the length of delay. In the context of a time limit of 21 days to file a
notice of appeal, a delay of 13 days is significant. The appellant had known, from the time of
His Honour’s decision, that the time limit was 21 days from that date.
[20] We turn to consider the grounds of appeal and the likelihood of one or more of those
grounds being upheld if time was extended. We commence by noting that it is not in dispute
that Kestrel had complied with s.531(2) of the Act. The principal challenge is to the finding
that it had also complied with s.531(3).
[21] We have closely considered all the evidence and submissions before His Honour and
are not persuaded there is an arguable case he was in error in the finding he made that
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s.531(3) had been complied with. It was a finding reasonably open to him and, in reaching it,
we are not persuaded he erroneously applied the terms of that subsection.
[22] It was open to His Honour to find, as he did, that Kestrel had provided timely, detailed
and sufficient information about the reasons for its decision and the likely impacts of it. The
information was first provided soon after the decision was made and subsequently, further
information was provided. That Kestrel did not provide the appellant with all of the
information it requested does not constitute either a legal or factual error in the circumstances
of this application.
[23] The information provided allowed the CFMEU to make suggestions as to how to avert
or mitigate the adverse effects of the possible redundancies. It did suggest measures to
mitigate those effects and Kestrel implemented some of those suggested measures. Other
suggestions were properly considered by Kestrel and a response given about them to the
CFMEU. It was not suggested by any party that there was any obligation on Kestrel to agree
to all of the CFMEU’s proposals.
[24] It was also accepted by His Honour, correctly in our opinion, that ss.531(2) and 531(3)
of the Act are separate and discrete obligations on an employer. The obligation in s.531(3)
was to give the CFMEU an opportunity to consult with Kestrel about the matters referred to in
that subsection. To enable the CFMEU to do so in an acceptable manner did not require the
provision to it of the extensive documentation it sought. His Honour found that what was
provided enabled the consultation to be properly carried out in a meaningful way. The
CFMEU was given a genuine opportunity to influence the final outcome of Kestrel’s decision
to reduce the number of employees. We are not persuaded there is an arguable case His
Honour was in error in so finding.
[25] A fair reading of the transcript, in particular the exchanges during final submissions,
reflects that His Honour was well aware of the fact the section established two discrete
obligations. Furthermore, in complying with those obligations, we do not think His Honour
erroneously read down the scope of the documentation which may be required to comply with
s.531(3) by reference to that referred to in s.531(2). His Honour did not find that the
documents which an employer may be required to provide in the context of complying with
s.531(3) were those described in s.531(2). What he concentrated on was the scope of the
documents sought by the CFMEU which it had argued were necessary to ensure it was
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afforded an opportunity to consult with Kestrel. He was not persuaded that those documents
were necessary for the obligation to be complied with.
[26] We accept that, depending on the context and circumstances of a matter, information
additional to that provided in accordance with s.531(2) may well be required to be provided
for consultation in accordance with s.531(3) to be meaningful. This was not such a matter.
[27] The next ground of appeal asserts the reasons given for His Honour’s decision were
inadequate. We accept that unless there is some provision in the Act to the contrary, there is a
duty to give adequate reasons for a decision sufficient to allow a party to exercise any
available right of appeal. The reasons need only identify the essential grounds for the decision
he or she made, and the relevant facts and legislation taken into account. There is no need for
the reasons for decision to be lengthy or elaborate, nor spell out every detail in the reasoning
process or deal with every decision, fact or legal argument which was raised by one or other
party in the proceedings.2
[28] The circumstances in which His Honour gave his reasons in this matter also need to be
considered. The appellant had requested the application be listed on an urgent basis and that
His Honour determine the application on the day of the hearing. In those circumstances we
consider the reasons given, although short, were adequate. We have decided that this is not a
ground of appeal, in the context of the originating application here made, which would
persuade us to grant permission to appeal.
[29] Next, the CFMEU submits that by failing to publish a decision His Honour did not
comply with s.601 of the Act. In our opinion, even if this was to be accepted, it does not
establish that in reaching the decision that Kestrel had complied with its obligations under
s.531 His Honour was in error. We are not persuaded this appeal provides an appropriate
occasion to consider the requirements of s.601 of the Act and whether a decision given in
transcript is adequate to comply with the section. This is not a ground which would weigh in
favour of the grant of permission to appeal being given.
[30] The CFMEU submits there will be no real prejudice to Kestrel if time were extended.
In making this submission, however, it notes that even if His Honour’s decision is quashed,
that will not change the fact Kestrel has implemented its organisational changes and the
reduction in permanent employees has occurred. It accepts that fact cannot be reversed.
Nevertheless, it seeks for this Full Bench to use the occasion of this appeal to consider the
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obligations that should be placed upon an employer to consult a relevant union under s.531(3)
and the types of orders that may be made in the exercise of a member’s discretion to do so
under s.532.
[31] For the reasons we have already given, we are not persuaded that it is arguable His
Honour was in error in finding that Kestrel had complied with its obligations under s.531.
Accordingly, he did not need to consider the nature of orders which might have been
appropriate to be made under s.532 had he not so found. The application below proceeded on
the specific facts before him. His Honour’s decision does not, with respect to him, establish
any general precedent for further applications which may be made in the black coal mining
industry. This appeal is not the occasion for entertaining the broad issues the CFMEU wishes
to address. This is particularly so as there is no practical utility which would be achieved by
us doing so.
Conclusion
[32] We have not been persuaded to exercise our discretion to extend the time for filing of
this appeal. Further, had we been persuaded to do so, for the reasons we have given the
grounds of appeal are not such as to enliven the public interest or to establish any other
reasons such as to warrant the grant of permission to appeal.3
SENIOR DEPUTY PRESIDENT
Appearances:
Mr B Docking, counsel, and Mr A Walkaden for the Construction, Forestry, Mining and
Energy Union.
Mr M Smith and Ms C Lee, solicitors, for Kestrel Coal Pty Ltd.
Hearing details:
Sydney (with video link to Brisbane).
2015.
January 13.
OF THE FAIR WORK C AUSTRALI ISSION THE SEAL
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Printed by authority of the Commonwealth Government Printer
Price code C, PR562599
1 [2014] FWCFB 4822.
2 Barach v University of New South Wales [2010] FWAFB 3307; Shop, Distributive and Allied Employees'
Association v OPSM Pty Ltd Print Q2858.
3 For example, no substantial injustice would result if permission were refused, nor has a clear case of error been
demonstrated.
