1
Fair Work Act 2009
s.604 - Appeal of decisions
Daniel Stickley
v
Kestrel Coal Pty Ltd
(C2015/4001)
Leslie Cochrane
v
Kestrel Coal Pty Ltd
(C2015/4002)
Bevan Logovik
v
Kestrel Coal Pty Ltd
(C2015/4003)
Tony McDonell
v
Kestrel Coal Pty Ltd
(C2015/4004)
VICE PRESIDENT CATANZARITI
VICE PRESIDENT WATSON
COMMISSIONER JOHNS
SYDNEY, 22 JULY 2015
Appeal against decisions of Commissioner Spencer at Brisbane on 28 April 2015 in matter
numbers U2014/13401, U2014/13402, U2014/13400 and U2014/13399 – Permission to
appeal – Whether grounds of appeal attract the public interest – Jurisdiction – Whether
dismissals were genuine redundancies – Whether reasonable to redeploy – Fair Work Act ss.
389, 394, 400 and 604.
Introduction
[1] This decision concerns an application for permission to appeal against a series of
similar decisions of Commissioner Spencer handed down on 28 April 2015.1 The decisions
arose from unfair dismissal applications made by Daniel Stickley, Leslie Cochrane, Bevan
Logovik and Tony McDonell (the appellants) on 22 October 2014 under s.394 of the Fair
Work Act 2009 (the Act) in relation to the termination of their employment by Kestrel Coal
[2015] FWCFB 4760
DECISION
AUSTRALIA FairWork Commission
[2015] FWCFB 4760
2
Pty Ltd (Kestrel). The applications before the Commissioner addressed similar issues and
were heard jointly by consent. Therefore, while separate decisions were issued in each matter,
there was considerable commonality in the factual circumstances and the reasons for the
decisions.
[2] At the hearing of the appeal matters on 14 July 2015 Mr S. Crawshaw SC of counsel
appeared for the appellants and Mr D. Williams of counsel appeared for Kestrel.
Background
[3] Arising from a downturn in the coal industry 52 employees, including the appellants,
were made redundant in October 2014. The appellants lodged unfair dismissal applications
with the Commission on 22 October 2014. The initial question was whether the dismissals
were cases of genuine redundancy as defined by s.389 of the Act which provides:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed
by anyone because of changes in the operational requirements of the
employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or
enterprise agreement that applied to the employment to consult about the
redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been
reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[4] The appellants contended that their jobs were still required to be performed and that
alternative options for their redeployment within Kestrel’s enterprise or that of an associated
entity had not been exhausted.
[5] The Commissioner found in relation to each of the matters:
“[191] The Respondent has established that the dismissal was a case of genuine
redundancy; that the job the Applicant performed was no longer required to be
performed, and that appropriate consultation was undertaken in relation to the
redundancy. The Respondent had no obligation to redeploy the Applicants to
positions performed by contractors. I accept that in the organisation structure, the
“vacant” roles were not in existence. There were no roles for the Applicant to be
redeployed to within RTCA. Further, no appropriate alternative and non- RTCA jobs
were identified, and redeployment to non-RTCA entities was not required by the
Respondent as they were not subject to the same overall managerial control, and
lacked managerial integration.”
[2015] FWCFB 4760
3
Grounds of Appeal
[6] The appellants contend that the Commissioner erred in concluding that the dismissals
were cases of genuine redundancy. They submit that it was reasonable for them to be
redeployed in the following respects:
The appellants should have been redeployed to roles which were being carried out by
a contractor (Mastermyne), even if only on a temporary basis; and
It would have been reasonable for the appellants to be redeployed to positions within
the enterprise of an associated entity of Kestrel outside of the Rio Tinto Coal
Australia Group.
[7] The appellants contend that the reasons for decision impermissibly treat certain
propositions as binding principles whereas they should have been considered to be relevant
considerations that are not in themselves determinative of the matters.
Permission to Appeal
[8] An appeal in relation to an unfair dismissal matter is governed by the provisions of ss.
604 and 400 of the Act. Section 604 of the Act deals with appeals generally. These
requirements are modified with respect to unfair dismissal appeals by s.400 of the Act which
provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a
decision made by FWA under this Part unless FWA considers that it is in the public
interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in
relation to a matter arising under this Part can only, to the extent that it is an appeal on
a question of fact, be made on the ground that the decision involved a significant error
of fact.”
[9] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with
whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent
one’2. The Commission must not grant permission to appeal unless it considers that it is ‘in
the public interest to do so’
[10] The test for determining the public interest has been described as follows:3
“[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 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]
[2015] FWCFB 4760
4
[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.”
[11] In certain respects at least, a decision on the reasonableness of redeployment is a
decision of a discretionary nature. Usually, such a decision can only be successfully
challenged on appeal if it is shown that the discretion was not exercised correctly.4 It is not
open to an appeal bench to substitute its view on the matters that fell for determination before
the Commissioner in the absence of error of an appealable nature in the decision at first
instance. As the High Court said in House v The King:5
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[12] We have considered the circumstances of this matter and the grounds of appeal
advanced by the appellants. The proceedings before the Commissioner were long and
complex. The decisions disclose the full range of circumstances that were taken into account.
It is well established that the reasons under challenge must be read as whole and considered
fairly. An error is not to be found merely in looseness of language or infelicity of expression.6
[13] Under the heading “Considerations and Conclusion” the Commissioner sequentially
considered the elements of the definition of genuine redundancy in s.389. Some factors, such
as work chosen to be performed by contractors, were relevant to s. 389(1)(a) and s. 389(2)(a).
Insofar as the work of contractors is concerned, the appeal only relates to the finding with
respect to s.389(2)(a). In that respect the Commissioner said:
“[182] With respect to s.389(2)(a) “reasonable in all the circumstances for the person to
be redeployed within the employer’s enterprise”, and whether the Applicants could
have been reasonably redeployed into the Respondent’s enterprise, it is not accepted
that the Respondent had an obligation to redeploy the Applicant into a “backfill
position” filled by Mastermyne employees. The timing of this project, and the short-
term engagement of the project are relevant considerations, as is the Respondent’s
[2015] FWCFB 4760
5
prerogative to structure their workforce on the optimum, operational and flexible basis
for their business.
[183] The roles in the organisational structure were not being recruited for, and while
only the Applicant’s names had been deleted from the structure, it is accepted that the
jobs no longer existed, and therefore, the job, position or work were not available for
redeployment to, for the Applicants.”
[14] In this passage the Commissioner was applying the relevant element of the definition.
The language used to summarise the requirement varied from the language in the section. In
no case was there any ‘obligation’ in a legal sense to employ employees in roles filled by
employees of the contractor. However, this passage must be considered in the context of the
decision as a whole. Properly understood, in our view, the Commissioner was expressing a
conclusion in relation to the reasonableness of continuing to employ persons to perform the
work that had become work of contractors. The Commissioner did not state that work being
performed by contractors was irrelevant to that process. Indeed the Commissioner expressly
considered those circumstances.
[15] In our view, the considerations leading to the ultimate conclusion regarding the work
of the contractor’s employees were all properly considered and taken into account. We are not
persuaded that the discretion was improperly exercised or that there were any significant
errors in the findings of fact. The facts and circumstances were considered by the
Commissioner to be relevant circumstances in making the requisite overall judgment. The
decision does not apply a binding principle that s.389(2)(a) has no application in relation to
the work of contractors.
[16] The appeal grounds also allege error in the consideration of possible redeployment in
other businesses within the Rio Tinto Group - that is businesses outside of the Rio Tinto Coal
Australia Group. It is contended that the Commissioner misapplied established authority
concerning the relevance of managerial integration between the different entities. The relevant
Full Bench authority is the case of Ulan Coal Mines Limited v Honeysett and Others7 in
which the Full Bench said:
“[26] First, s.389(2) must be seen in its full context. It only applies when there has
been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if
the dismissal was a genuine redundancy. In other words, if the dismissal is a case of
genuine redundancy the employer has a complete defence to the application. Section
389(2) places a limitation on the employer’s capacity to mount such a defence. The
defence is not available if it would have been reasonable to redeploy the employee.
The exclusion poses a hypothetical question which must be answered by reference to
all of the relevant circumstances.
[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable
for an employee dismissed by one employer to be redeployed within the establishment
of another employer which is an entity associated with the first employer. It follows
that an employer cannot succeed in a submission that redeployment would not have
been reasonable merely because it would have involved redeployment to an associated
entity. Whether such redeployment would have been reasonable will depend on the
circumstances. The degree of managerial integration between the different entities is
likely to be a relevant consideration.
[2015] FWCFB 4760
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[28] Thirdly, the question posed by s.389(2), whether redeployment would have
been reasonable, is to be applied at the time of the dismissal. If an employee dismissed
for redundancy obtains employment within an associated entity of the employer some
time after the termination, that fact may be relevant in deciding whether redeployment
would have been reasonable. But it is not determinative. The question remains whether
redeployment within the employer’s enterprise or the enterprise of an associated entity
would have been reasonable at the time of dismissal. In answering that question a
number of matters are capable of being relevant. They include the nature of any
available position, the qualifications required to perform the job, the employee’s skills,
qualifications and experience, the location of the job in relation to the employee’s
residence and the remuneration which is offered.”
[17] We have considered the terms of the Commissioner’s decision. The Commissioner
expressly referred to the above authority and considered it as the statement of relevant
principle. In our view, it would be a mistake to view her conclusions in the circumstances of
the case before her as applying a test inconsistent with the Full Bench authority. In our view,
the approach adopted by the Commissioner is consistent with the Full Bench authority and it
has not been demonstrated that there is anything in the application of the test that is in error.
[18] We have not been persuaded that the grounds of appeal establish error in the
Commissioner’s decision or that the grounds establish an appropriate basis for finding that it
is in the public interest to grant permission to appeal.
[19] Kestrel raised a further matter concerning the appropriateness of granting permission
to appeal in this matter. It pointed to evidence of an express invitation issued by Kestrel to all
redundant employees as to whether they wished to continue to be considered for
redeployment. A number of other redundant employees expressed an interest but the four
appellants in this matter did not. Kestrel contends that even if reasonable redeployment
opportunities were found to exist, Kestrel would have appropriately offered the vacancies to
the employees who expressed an interest at the time. Hence it would be most unlikely that
unfairness would be found in any event. In our view, this is a further reason why it is not in
the public interest to grant permission to appeal in this case.
Conclusion
[20] For the above reasons we decline to grant permission to appeal. The application for
permission to appeal is dismissed.
VICE PRESIDENT
THE FAIR WORK COMMISSION THE SEAA
[2015] FWCFB 4760
7
Appearances:
S Crawshaw SC, of counsel, for the appellants.
D Williams, of counsel, for Kestrel.
Hearing details:
2015.
Sydney – Video Conference Link to Brisbane.
14 July.
Final written submissions:
The appellants on 2 July 2015.
Kestrel on 14 July 2015
Printed by authority of the Commonwealth Government Printer
Price code C, PR569380
1 [2015] FWC 2884, [2015] FWC 2885, [2015] FWC 2883 and [2015] FWC 2866.
2 (2011) 192 FCR 78 at paragraph 43.
3 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
4 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
5 Ibid.
6 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287; Minister for Immigration and Ethnic
Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291; Fox v Australian Industrial Relations Commission [2007]
FCAFC 150 at [116] to [119] and Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd [2013] FWCFB
7736 at [33] to [37].
7 [2010] FWAFB 7578.
