1
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Nick Tsiftelidis
v
Crown Melbourne Limited
(C2016/3380)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER CIRKOVIC
BRISBANE, 2 JUNE 2016
Appeal against decision [[2016] FWC 1689] and Order PR578345 of Commissioner Cribb at
Melbourne on 24 March 2016 in matter number U2015/5662.
[1] Crown Melbourne Limited (Respondent) had employed Mr Nick Tsiftelidis (Appellant)
for approximately eight and a half years until 12 May 2015 when it dismissed him on
redundancy grounds. The Appellant was employed by the Respondent as a Sports Consultant
at the Respondent’s Crown Promenade Deck, a position the Appellant occupied at the time of
his dismissal. In his employment with the Respondent, the Appellant was covered by the
Crown Melbourne Enterprise Agreement 2013 (Agreement). The Appellant applied for an
unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) on 1 June
2015.
[2] The Appellant’s unfair dismissal remedy application was heard and determined by
Commissioner Cribb, who issued a decision on 24 March 20161 in which the Commissioner
concluded that the Appellant’s dismissal was a case of genuine redundancy within the
meaning of s.389 of the Act2 and dismissed the application by order.3
[3] The Appellant seeks permission to appeal the Commissioner’s decision and order and that
is the matter before us.
[4] The decision, the subject of the appeal was made under Part 3-2 – Unfair Dismissal of the
Act. Section 400(1) provides that permission to appeal must not be granted from such a
decision unless the Commission considers that it is in the public interest to do so. Further, in
such matters, appeals on a question of fact may only be made on the ground that the decision
involved a ‘significant error of fact’ (s.400(2)). In Coal & Allied Mining Services Pty Ltd v
Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
1 [2016] FWC 1689.
2 Ibid at [92].
3 PR578345.
[2016] FWCFB 3345
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 3345
2
the test under s.400 as ‘a stringent one’.4 The Commission must not grant permission to
appeal unless it considers that it is ‘in the public interest to do so’.
[5] The task of assessing whether the public interest test is met, is a discretionary one
involving a broad value judgment.5 In GlaxoSmithKline Australia Pty Ltd v Makin6 a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
“... 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.”7
[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so, because an appeal cannot succeed in the absence
of appealable error.8 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.9
[7] The Notice of Appeal lodged by the Appellant contains numerous grounds that are said to
demonstrate an appellable error. It is unnecessary for us to recite those grounds and it is
sufficient for present purposes to note that one of the grounds relied upon by the Appellant, is
that the Commissioner erred in concluding that clause 24 of the Agreement, which deals with
change consultation, had no application in the circumstances of the Appellant’s dismissal
because clause 33 of the Agreement deals with redundancy consultation.10
[8] The Commissioner’s reasoning is captured in the passages below:
“[71] It was submitted by Crown that their only obligation to consult in the Agreement was
contained in clause 33 – Redundancy. The argument that the employer was also required to
have consulted under clause 24 – Change Consultation - was rejected. This was on the basis
that Crown did not consider that making one position redundant constituted major change. It
was argued by the company that it had consulted with Mr Kemppi of United Voice in relation
to Mr Tsiftelidis’ redundancy, in accordance with the requirements of clause 33 of the
Agreement.
[72] On the other hand, Mr Tsiftelidis contended that, if Crown could consult with the union,
it could have consulted with him. This was said to be particularly so as the review took place
over a period of 11 months. Further, Mr Tsiftelidis submitted that there was nothing in either
the Fair Work Act or the Major Change clause of the Agreement which stated that single
redundancies did not require consultation. In addition, Mr Tsiftelidis questioned whether the
4 (2011) 192 FCR 78 at [43].
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
6 (2010) 197 IR 266.
7 Ibid at [27].
8 Wan v AIRC [2001] FCA 1803 at [30].
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services
Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied
Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia
represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
10 See notice of appeal pages 3 and 4.
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2016] FWCFB 3345
3
proper consultation with United Voice had taken place and queried why Mr Kemppi had not
been called to give evidence about this by the company.
[73] The Agreement contains two clauses which deal with consultation in relation to
redundancy – clauses 24 and 33. Clause 24 – Change Consultation - requires, amongst other
things, that the company is obliged to notify affected employees of major changes, to discuss
the changes and to mitigate the adverse effects of the change. The second clause is clause 33 –
Redundancy - and it provides that, prior to the redundancy taking effect, the company shall
consult with the relevant union.
[74] Section 389(1)(b) of the Act requires that the employer has complied with any obligation
in the Agreement (in this case) to consult about the redundancy. Clause 33 of the Agreement is
quite specific in that it applies to redundancy and it states, at 33.3, that:
“Prior to redundancies taking effect, the company shall consult with the relevant union
as required by the Act in each circumstance to determine alternatives to redundancy.
Where practical, the company will consider volunteers for redundancy before
implementing forced redundancies.”
[75] On the other hand, clause 24 is a general clause which requires the company to notify,
discuss and mitigate major changes in production, programs, organisation etc.
[76] It is an accepted principle of statutory interpretation that, when there is more than one
clause which covers the same field, it is the more specific clause, rather than the general
clause, which is applicable. Therefore, as clause 33 is specifically concerned about
redundancy and contains a requirement to consult, the obligation on the employer was to
consult in accordance with clause 33 of the Agreement.”11
[9] In our view, the Commissioner’s approach to the construction of the Agreement was
arguably erroneous for the following reasons.
[10] First, the proper approach to the construction of an agreement was discussed at length
in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited.12 Secondly,
the Agreement, being an enterprise agreement approved by the Commission under the Act, is
neither an Act nor an instrument of a kind described in s.46 of the Acts Interpretation Act
1901.13 Presumptions applicable to statutory construction should therefore be applied with
some caution to instruments that are the product of agreement between bargaining parties.
Thirdly, the syntactical presumption which the Commissioner sought to apply, appears to
have been wrongly stated and therefore misapplied.
[11] The latin description for the syntactical presumption is generalia specialibus non
derogant, which in its application means that where there is a conflict between general and
specific provisions, the specific provision will prevail. The presumption is not of general
application. It is one that applies only if provisions are in conflict.
[12] The Commissioner appears to have had resort to the presumption without regard to
whether there was any conflict between clauses 24 and 33 of the Agreement. On their face,
there is arguably no conflict between the two provisions.
11 [2016] FWC 1689 at [71]-[76].
12 [2014] FWCFB 7447.
13 Ibid at [38]; see also Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84 at [58].
[2016] FWCFB 3345
4
[13] The resolution of the construction point was material in the Commissioner’s ultimate
determination that the Respondent had complied with its obligations to consult under the
Agreement.14 That conclusion is therefore arguably attended by appellable error and the
factual conclusion that the Respondent discharged its obligations to consult prescribed by the
Agreement, is arguably a significant error of fact.
[14] The Agreement is one of general application which covers a substantial part of the
large workforce employed by the Respondent. We consider that the appeal raises an important
question about the proper construction of the Agreement and the proper application of
interpretive principles. The appeal also raises for consideration the proper application of s.389
of the Act particularly as the question whether a dismissal is a case of genuine redundancy is
determined as a preliminary matter before the merits of an unfair dismissal remedy
application are considered.15 Moreover, the decision at first instance manifests an injustice as
the Appellant would be deprived of the real possibility of a remedy because of a construction
error made in the process of determining a preliminary matter. For these reasons, we consider
that the public interest is enlivened and as an arguable case for appellable error has been
shown permission to appeal should be granted.
Conclusion
[15] Permission to appeal is granted.
[16] The Appeal will be heard by a Full Bench in Melbourne on 12 July 2016 at a time to
be specified.
VICE PRESIDENT
Appearances:
Mr N Tsiftelidis appeared in person.
Ms J Williamson on behalf of the Respondent.
Hearing details:
11.30am.
18 May 2016.
Melbourne.
Printed by authority of the Commonwealth Government Printer
Price code A, PR580770
14 [2016] FWC 1689 at [78] – [78].
15 See s.396(c).
THE FAIR WORK CO COMMISSION AF NOISS THE SEAA
