1
Fair Work Act 2009
s.604 - Appeal of decisions
Australasian Meat Industry Employees Union, The
v
Teys Australia Beenleigh Pty Ltd
(C2013/6376)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOOLEY
COMMISSIONER JOHNS
MELBOURNE, 4 MARCH 2014
Appeal against decision [[2013] FWCA 7477; [2013] FWC 7804] of Deputy President
Asbury at Brisbane on 27 September 2013 in matter number AG2013/8000 - s.181(1) Fair
Work Act 2009 (Cth) - meaning of ‘will be covered’ - erroneous test applied - appeal upheld.
[1] On 27 September 2013 Deputy President Asbury approved the Teys Australia
Beenleigh Pty Ltd Production Departments Enterprise Agreement 2013 (the Agreement)1. The
Australian Meat Industry Employees’ Union (the AMIEU) has appealed the Deputy
President’s decision. The relevant background can be shortly stated.
[2] In early August 2013 Teys Australia Beenleigh Pty Ltd (Teys) put the approval of the
Agreement to a ballot of employees, conducted by the Australian Electoral Commission.
Some 709 persons voted, 351 in favour, 343 against and 7 informal. Teys made an application
to the Fair Work Commission (the Commission) for the approval of the Agreement. The
AMIEU opposed the approval of the Agreement.
[3] The short point put by the AMIEU both at first instance and on appeal is that some 21
Teys employees, including ‘Trainee Supervisors’, were not covered by the Agreement and
hence had no entitlement to vote on the approval of the Agreement. In the proceedings before
the Deputy President it was not in dispute that Teys employed persons referred to as Trainee
Supervisors, and that those persons were included on the roll of eligible voters in relation to
the approval of the Agreement. Nor was it in dispute that some of the Trainee Supervisors
voted in the ballot for approval of the Agreement and that all Trainee Supervisors may have
voted. Accordingly, if Trainee Supervisors were not eligible to vote in the ballot for the
approval of the Agreement, the outcome of the ballot may have been different.
[4] The issues before the Commission at first instance were:
(a) the proper interpretation of clause 1.3 of the Agreement;
(b) a determination by the Commission of the employees who will be covered by the
proposed Agreement for the purpose of being satisfied that the employees in the group
[2014] FWCFB 1313[Note: refer to the Federal Court decision dated 12
February 2015 [2015] FCAFC 11 for result of appeal]
DECISION
E AUSTRALIA FairWork Commission
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2015/2015fcafc0011
[2014] FWCFB 1313
2
covered were given the opportunity to vote to make the Agreement in accordance with
s.182 of the Act;
(c) the application of the facts so determined to the proper interpretation of clause 1.3
of the Agreement.
[5] In the decision subject to appeal (the Decision) the Deputy President rejected the
AMIEU’s challenge to the approval of the Agreement, for the following reason:
(a) The contention that the terms of the Agreement should be construed so as to
exclude Trainee Supervisors was rejected (Decision at [46] and [49]).
(b) The following matters were relied on in support of the Deputy President’s
conclusion:
(i) The objects of the Act (Decision at [49]).
(ii) The excluded group would, on the appellant's contention, be excluded from
the coverage of both the Agreement and the underpinning Award (Decision at
[50], [51], [52] and [53]).
(iii) The Agreement as a whole and in particular the objects of the Agreement
in clause 1.2 and the provisions of clause 3.4 supported the Commission's
views (concerning the introduction of a structured training program and
defined career path) (Decision at [54] and [55]).
(iv) The term ‘engaged’ in the exclusionary part of clause 1.3 of the Agreement
required the relevant employees to be specifically engaged to perform those
duties (so as to exclude them from coverage) in accordance with the practice
adopted by Teys for Trainee Supervisors or employees undergoing workplace,
health and safety training to be specifically engaged as Supervisors or
Workplace Health and Safety Officers in order to be excluded from coverage
(Decision at [56]).
(v) Temporary assignments did not exclude employees from coverage
(Decision at [57], [59] and [61] as it did not change the employee's substantive
classification (Decision at [58]).
(vi) Payment in excess of the rate for a substantive classification under the
Agreement as an incentive to employees to undertake the training was
irrelevant (Decision at 62]).
[6] While a number of particular grounds of appeal are advanced the essence of the
appellant’s case is that 21 Teys employees (including 17 ‘Trainee Supervisors’) were given
the opportunity to vote in the ballot to approve the Agreement in circumstances where they
were not covered by the Agreement.
[7] The appeal raises four principal issues:
[2014] FWCFB 1313
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(i) whether the Deputy President erred in the proper interpretation of s 181 (1) and
182( 1) of the Act in respect of the interpretation of the phrase ‘will be covered by
a proposed agreement’;
(ii) whether the Deputy President misconstrued clause 1.3 of the Agreement;
(iii) whether the Deputy President erred by failing to take into account relevant
evidence or material considerations relating to the roles and nature of work
performed by Supervisors and by Trainee Supervisors;
(iv) whether the Deputy President failed to give reasons or adequate reasons for the
decision.
[8] For reasons which will become apparent it is not necessary for us to determine all of
the issues raised in the appeal. We deal first with the relevant statutory provisions.
[9] Section 186(2) provides that the Commission must approve an enterprise agreement if,
among other things, the agreement has been ‘genuinely agreed by the employees covered by
the agreement’. Section 188 deals with when employees have ‘genuinely agreed’ to an
enterprise agreement:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the
agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with
the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to
approve an enterprise agreement until 21 days after the last notice of employee
representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2)
applies (those subsections deal with the making of different kinds of enterprise
agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been
genuinely agreed to by the employees.”
[10] The pre-approval step in s.181(1) is relevant for present purposes, it provides:
“An employer that will be covered by a proposed enterprise agreement may request the
employees employed at the time who will be covered by the agreement to approve the
agreement by voting for it.” [emphasis added]
[11] Section 53(1) provides that an enterprise agreement covers an employee if ‘the
agreement is expressed to cover (however described) the employee’. Section 256A is also
relevant, it deals with how employees are to be described:
“256A How employees, employers and employee organisations are to be described
[2014] FWCFB 1313
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(1) This section applies if a provision of this Part requires or permits an instrument of any kind
to specify the employers, employees or employee organisations covered, or who will be
covered, by an enterprise agreement or other instrument.
(2) The employees may be specified by class or by name.
(3) The employers and employee organisations must be specified by name.
(4) Without limiting the way in which a class may be described for the purposes of
subsection (2), the class may be described by reference to one or more of the following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job level or grade.”
[12] Section 256A is in Part 2-4 - Enterprise Agreements - of the Act.
[13] The first issue raised by the appellant ((i) at paragraph [7] above) is directed at
paragraph [47] of the decision subject to appeal in which the Deputy President says:
“[47] The AMIEU essentially submits that the term “will” has a fixed intent and purpose. I
do not accept that submission. In my view, the use of the term “will” is to ensure that
employees who are reasonably identifiable at the time the ballot is conducted, and who will, or
will likely be, covered by the Agreement during its operation, have an opportunity to vote and
to be afforded the other rights pursuant to the pre-approval process for the agreement.”
[14] The appellant submits that the Deputy President made an error in deciding that
employees who ‘will likely be covered by the Agreement during its operation have an
opportunity to vote’.
[15] The phrase ‘will be covered by the agreement’ in s.181(1) does not indicate future
likelihood but rather expresses a determinate or necessary consequence.2 As Katzmann J
observed in CFMEU v FWA:
“Objectively, the intention of the legislature in using the expression was to ensure that the
employer could only make an agreement with those employees who were named or described
in the agreement and whom the agreement purported to cover.”3
[16] The respondent submits that the Deputy President’s reasoning at paragraph [47] of the
decision must be read in context:
“Membership of the group or class of employees to be covered, or excluded from coverage,
under a particular agreement is fluid and may at a later time result in an employee no longer
being covered by an agreement for a number of reasons, such as, for example promotion to a
supervisory position. Trainee Supervisors were at the time of voting engaged in the group to
be covered - they had neither been offered contracts of employment from the different
employing entity, nor were they undertaking management or supervisory work as properly
understood under clause 1.3 other than from time to time as trainees with a mere prospect of
being offered future employment as a supervisor. The principal purpose for which they were
employed in the production operations was to perform work within the classifications
contained in the Agreement and they were not excluded from coverage by reason of the
exclusionary part of clause 1.3.
[2014] FWCFB 1313
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The reference in paragraph [47] to ‘or will likely be’ is thus no more than a reflection of the
evidentiary issue before the Tribunal and was not a misapplication of the test. The reasoning in
the Decision as a whole is further illustrative of the absence of any error.”4
[17] The decision subject to appeal must be read as a whole and considered fairly. As
Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang5:
“The reasons under challenge must be read as whole. They must be considered fairly. It is
erroneous to adopt a narrow approach, combing through the words of the decision-maker with
a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the
inference of an error of law.”
[18] Giving full force to his Honour’s observations we are not persuaded that paragraph
[47] of the Deputy President’s decision can be characterised as a verbal slip. The Deputy
President expressly rejected the AMIEU’s submission as to the meaning of the expression
‘will be covered by the agreement’ in s.181(1) and concluded, erroneously, that “the use of
the term ‘will’ is to ensure that employees who are reasonably identifiable at the time the
ballot is conducted and who will, or will likely be, covered by the Agreement during its
operation have an opportunity to vote”.
[19] The Deputy President’s view is confirmed at paragraph [48] where she observes that
‘the term ‘will’ should not be narrowly construed’. Further, the test posited at paragraph [47],
that is future likelihood that the relevant employees will be covered by the Agreement, is then
applied by the Deputy President at paragraph [57] of the Decision:
“[57] I am also of the view that employees paid and classified as production workers
at various levels of the Agreement can be temporarily assigned to perform incidental tasks
such as assisting co-workers from non-English speaking backgrounds, at the behest of
Teys, by interpreting for those co-workers. The evidence is that the employees engaged
in these temporary assignments have now returned to their roles as production workers or
will likely do so during the term of the Agreement...” [emphasis added]
[20] It seems to us that the erroneous test adopted at paragraph [47] of the Decision was
central to the Deputy President’s reasoning process and to her conclusion.
[21] The appellant also submits that the Decision discloses a further error, at paragraph
[50].
[22] At paragraphs [49] to [65] of the Decision the Deputy President sets out her reasons
for concluding that the Agreement covered all of the employees that the AMIEU submitted
were not eligible to vote. Importantly, those reasons include the observation at paragraph [50]
that:
“To accept the argument of the AMIEU with respect to the disputed employees would result in
a situation where those employees would not be entitled to the benefits of either the
Agreement or the Award. Such an outcome would be neither fair nor sensible.”
[23] The task at first instance was to determine who ‘will be covered’ by the Agreement by
reference to the terms of the Agreement, and in particular clause 1.3. Anteriorly derived
[2014] FWCFB 1313
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notions of what would be fair or sensible are irrelevant to the task of construing the
Agreement. As Madgwick J observed in Kucks v CSR Limited6:
“But the task remains one of interpreting a document produced by another or others. A court is
not free to give effect to some anteriorly derived notion of what would be fair or just,
regardless of what has been written into the award. Deciding what an existing award means is
a process quite different from deciding, as an arbitral body does, what might fairly be put into
an award. So, for example, ordinary or well-understood words are in general to be accorded
their ordinary or usual meaning.”
[24] It follows that we agree with the appellant’s submission and the Deputy President
erroneously had regard to what would be a fair or sensible outcome in determining the
coverage of the Agreement.
[25] An appeal under s.604 is an appeal by way of rehearing and the Tribunal’s powers on
appeal are only exercisable if there is error on the part of the primary decision maker.7
[26] We are satisfied that the Deputy President erred in her interpretation of the expression
‘will be covered’ by the agreement, in s.181(1), and in having regard to anteriorly derived
notions of fairness in construing the coverage of the Agreement. On that basis we will grant
permission to appeal, uphold the appeal and quash the Deputy President’s decision to approve
the Agreement.
[27] The appellant submits that if we uphold the appeal we should make a further decision
in relation to the matter that is the subject of the appeal. We are not persuaded that the course
proposed is appropriate in circumstances where the Member at first instance has had the
benefit of oral evidence relevant to the determination of the coverage of the Agreement. We
propose to remit the matter to the Deputy President pursuant to s.607(3)(c) to deal with the
application to approve the Agreement in accordance with this decision.
[28] During the course of the proceedings on 11 December 2013 counsel for Teys
submitted that if, contrary to his submissions, we concluded that the Deputy President had
erred and the decision to approve the Agreement must be set aside then a question would arise
as to whether the Agreement should be set aside ab initio or prospectively. We indicated that
if we reached such a conclusion we would provide the parties with an opportunity to be heard
before finalising the order arising from our decision. We propose that Deputy President
Gooley settle the order arising from our decision after providing the parties with an
opportunity to be heard, with recourse to the Appeal Bench in necessary.
PRESIDENT
[2014] FWCFB 1313
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Appearances:
Mr E. Dalgleish on behalf of the Australian Meat Industry Employees Union
Mr H. Dixon SC for the respondent
Hearing details:
2013.
Brisbane.
11 December
Printed by authority of the Commonwealth Government Printer
Price code C, PR548045
1 [2013] FWC 7804 and [2013] FWCA 7477
2 Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206 at [51]
3 (2011) 195 FCR 74 at 89, [79]
4 Submissions on behalf of the Respondent at paragraphs [32]-[33]
5 (1996) 185 CLR 259 at 291
6 (1996) 66 IR 182 at [184]. Also see DP World Brisbane Pty Ltd v The Maritime Union of Australia [2013] FWCFB 8557 at
[31]
7 This is so because on appeal the FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v
AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
