[2019] FWCFB 5861
On 23 August 2019, an administrative error caused an incorrect version of the decision with
the above code to be published electronically. The correct and final version appears below and
wholly replaces the decision earlier issued.
Ingrid Stear
Associate to Vice President Hatcher
27 August 2019
1
Fair Work Act 2009
s.604 - Appeal of decisions
Linfox Australia Pty Ltd
v
Australian Federated Union of Locomotive Employees; Australian Rail,
Tram and Bus Industry Union
(C2019/4377)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT COLMAN
COMMISSIONER MCKENNA SYDNEY, 23 AUGUST 2019
Appeal against decision [2019] FWC 3653 of Commissioner Spencer at Brisbane on 28 June
2019 in matter number B2019/422.
[1] Linfox Australia Pty Ltd (Linfox) has lodged an appeal, for which permission to
appeal is required, against a decision issued by Commissioner Spencer on 28 June 20191
(Decision). The Decision concerned an application made by Linfox pursuant to s 426 of the
Fair Work Act 2009 (FW Act) for the suspension for a two month period of protected
industrial action being taken by employees of Aurizon Operations Limited (Aurizon) who are
members of the Australian Federated Union of Locomotive Employees (AFULE) or the
Australian Rail, Tram and Bus Industry Union (RTBU). Linfox contended that the protected
industrial action threatened to cause it significant harm as a third party. In the Decision the
Commissioner rejected the application on the basis that she was not satisfied that the requisite
significant harm to Linfox was threatened. In its appeal, Linfox contends that the
Commissioner erred in a number of respects in her consideration of “significant harm”.
[2] Section 426(1) of the FW Act requires the Commission to make an order suspending
protected industrial action for a proposed enterprise agreement “that is being engaged in” if
the requirements set out in the section are met. Subsections (2)-(6) of s 426 set out the
requirements referred to in s 426(1). Relevant to this proceeding, s 426(3) and (4) provide:
(3) The FWC must be satisfied that the protected industrial action is threatening to
cause significant harm to any person other than:
(a) a bargaining representative for the agreement; or
(b) an employee who will be covered by the agreement.
1 [2019] FWC 3653
[2019] FWCFB 5861
DECISION
E AUSTRALIA FairWork Commission
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#bargaining_representative
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#protected_industrial_action
[2019] FWCFB 5861
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(4) For the purposes of subsection (3), the FWC may take into account any matters it
considers relevant including the extent to which the protected industrial
action threatens to:
(a) damage the ongoing viability of an enterprise carried on by the person; or
(b) disrupt the supply of goods or services to an enterprise carried on by the
person; or
(c) reduce the person's capacity to fulfil a contractual obligation; or
(d) cause other economic loss to the person.
[3] The relevant facts of the matter are as follows. Aurizon is a rail freight business which
has major operations in Queensland. Linfox is a transport and logistics business which, in
Queensland, uses rail as one of the modes by which it transports freight. Linfox contracts with
Aurizon to pull and maintain its rail wagons and containers and to provide access to three of
Aurizon’s rail freight terminals. Employees of Aurizon in its Bulk Business Unit, including
employees who perform functions in connection with Aurizon’s contractual relationship with
Linfox, are currently bargaining with Aurizon for a new enterprise agreement, and have taken
protected industrial action pursuant to the relevant provisions of the FW Act. At the time that
Linfox lodged its s 426 application (on 24 May 2019), employees of Aurizon were engaged in
an overtime ban which had commenced on 15 May 2019 and was to end on 28 May 2019. A
48-hour stoppage of work had also been notified to occur on 28-30 May 2019. Linfox
contended that this industrial action would result in the number of train services it could
provide to transport its customers’ freight being significantly reduced, to its commercial
detriment.
[4] As earlier stated, Linfox’s application sought that the protected action be suspended
for a period of two months. The Commissioner heard the application expeditiously on 27 May
2019, and advised the parties in writing shortly after the completion of the hearing that day
that she did not intend to grant the application and would issue her reasons as soon as
possible. We will assume in Linfox’s favour, for the purpose of the 21-day time limit to file
an appeal in rule 56(2) of the Fair Work Commission 2013 only, that this did not itself
constitute the formal decision in the matter.
[5] In the Decision issued on 28 June 2019, the Commissioner made extensive reference
to the Full Bench decision in CFMEU v Woodside Burrup Pty Ltd,2 which addressed among
other things the “significant harm” requirement in s 426(3). In that decision the Full Bench
construed the requirement in the following way:
[44] When regard is had to context of the FW Act as a whole and to the explanatory
memorandum, the expression “significant harm” in s.426(3) should be construed as
having a meaning that refers to harm that has an importance or is of such consequence
that it is harm above and beyond the sort of loss, inconvenience or delay that is
commonly a consequence of industrial action. In this context, the word “significant”
indicates harm that is exceptional in its character or magnitude when viewed against
the sort of harm that might ordinarily be expected to flow from industrial action in a
2 [2010] FWAFB 6021, 198 IR 360
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#enterprise
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#service
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#enterprise
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#protected_industrial_action
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#protected_industrial_action
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[2019] FWCFB 5861
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similar context. In this way, an order will only be available under s.426 in very rare
cases, as contemplated by the Explanatory Memorandum. It follows that it will not, of
itself, be sufficient that the harm, viewed in isolation, can be characterised as
“substantial”. Substantial harm to third parties is a common consequence of effective
industrial action. Unless the harm is out of the ordinary then suspension would
contrary to the legislative intention that suspension should not be able to used
generally to prevent legitimate protected industrial action in the course of bargaining.
In assessing whether there is “significant harm” context is also important. A particular
quantum of financial loss may constitute “significant harm” in one context but not in
another.
[6] The Commissioner followed Woodside Burrup and, on her assessment of the evidence
before her, concluded that Linfox had not satisfied the requirement in s 426(3) as elucidated
in Woodside Burrup.
[7] Linfox filed its appeal on 18 July 2019. This was 20 days after the Decision was
issued, and 52 days after Linfox was advised by the Commissioner that its application would
not be granted. Linfox did not seek an expedited hearing in its notice of appeal.
[8] Linfox’s appeal grounds and submissions advance, in summary, the following
contentions:
(1) The test in Woodside Burrup for “significant harm” was incorrect, and the
Commissioner erred by applying that test.
(2) Having applied the test in Woodside Burrup, the Commissioner erred in
finding that the harm being suffered by Linfox was not significant.
(3) Applying the principles in Woodside Burrup, the Commissioner erred in
concluding that the protected industrial action was not threatening to cause
significant harm to Linfox and would not damage the ongoing viability of the
relevant operating division of Linfox.
[9] Linfox contended that permission to appeal should be granted, notwithstanding that
there was currently no protected industrial action being undertaken, because:
bargaining involving Aurizon, the AFULE and the RBTU was continuing, and there
was a possibility of further protected industrial action occurring which might cause
harm to Linfox;
the decision in Woodside Burrup was incorrect and inconsistent with the Full Bench
decision in NTEIU v Monash University,3 and should be corrected in the public
interest;
if there were future protected industrial action, substantial injustice might be visited
upon Linfox if a further application which it made under s 426 was defeated because
of the application of Woodside Burrup;
3 [2013] FWCFB 5982
[2019] FWCFB 5861
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the “bar” had been set too high in Woodside Burrup, which had operated to discourage
the making of legitimate applications under s 426; and
although the appeal might not have an immediate practical consequence, it represented
a proper opportunity to reconsider Woodside Burrup at the appellate level, since it was
unlikely that there would ever be a circumstance where a Full Bench could consider
the issue while protected industrial action was occurring.
[10] It is well-established that a lack of any practical purpose in an appeal, even if
appealable error is demonstrated, provides a proper basis to refuse permission to appeal.4 This
principle has been applied in appeals from decisions concerned with the circumstances of
protected industrial action.5
[11] In this case, it is clear that the appeal has no practical utility. It is accepted by Linfox
that there is currently no protected industrial action being undertaken. Accordingly, even if
permission to appeal were to be granted and the appeal upheld, Linfox’s application would
still have to be dismissed because the jurisdictional precondition in s 426(1) that there be
protected industrial action “that is being engaged in” could not be satisfied. It may also be
noted that if the Commissioner had granted the relief sought by Linfox at first instance,
namely an order suspending protected industrial action for two months, that order would by
now have expired some time ago.
[12] We do not consider that any element of utility in the appeal can be established by
reference to the possibility of future protected industrial action by Aurizon employees.
Linfox’s submission in this regard is entirely speculative. Even if further protected industrial
action is taken, it is impossible to say what form that industrial action might take, whether it
would cause harm to Linfox or, if it did, whether the circumstances would be such as to
render the application of Woodside Burrup decisive as to the disposition of any s 426
application which Linfox might make. This is not a case where there has been a pattern of
industrial action causing third party harm which would support a conclusion that there was
practical utility in the appeal such as to justify the grant of permission.
[13] We reject the proposition advanced by Linfox that there will never be an appropriate
opportunity for a Full Bench to consider the correctness of Woodside Burrup in circumstances
of practical utility, because the usually short currency of protected industrial action would
mean that there would not be time for a matter to come before a Full Bench. There are many
cases where Full Benches of this Commission have dealt with cases involving industrial
action within extremely short timeframes. Examples include Victorian Hospitals' Industrial
Association v Australian Nursing Federation,6 MUA v ASP Ship Management Pty Ltd,7 MUA
v Teekay Shipping (Australia) Pty Ltd,8 and MUA v Patrick Stevedores Holdings Pty Ltd.9
There is no reason why the same could not have occurred in this matter.
4 See e.g. Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia [2013] FWCFB 4250 at [14]; Ferrymen
Pty Ltd [2013] FWCFB 8025, 238 IR 258 at [48]; at [28]; New South Wales Bar Association v McAuliffe [2014] FWCFB
1663, 241 IR 177 at [28]; Appeal by KCL Industries Pty Ltd [2016] FWCFB 3048, 257 IR 266 at [8].
5 See e.g. MUA v Harbour City Ferries Pty Ltd [2014] FWCFB 3858
6 [2011] FWAFB 8165, 214 IR 148
7 [2015] FWCFB 8057, 254 IR 143
8 [2015] FWCFB 4895
9 [2016] FWCFB 711, 256 IR 137
[2019] FWCFB 5861
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[14] For these reasons, we have decided that permission to appeal should be refused. We so
order.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR711611
OF THE FAIR WORK MISSION THE
