1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union
v
AGL Loy Yang Pty Ltd T/A AGL Loy Yang
(C2020/6094)
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT MASSON
BRISBANE, 24 DECEMBER 2020
Appeal against decision [2020] FWC 3992 of Deputy President Colman at Melbourne on 30
July 2020 in matter number C2019/7382 – arbitration under disputes procedure – permission
to appeal refused.
Introduction
[1] This matter arises out of an appeal from a decision of Deputy President Colman on 30
July 20201 (the Decision). The Decision concerns an application made by the Respondent in
accordance with s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a
dispute subject to the disputes procedure in the AGL Loy Yang Enterprise Agreement 2017
(the Agreement). The Agreement covers employees of the Respondent employed at its brown
coal mine and power station in the La Trobe Valley. These employees include members of the
Appellant. The Respondent’s proposal to use what has become referred to as the “allocation
tool” to assess when conveyor attendants will be allocated to shifts gave rise to the dispute.
Background
[2] Clause 30.2 of the Agreement provides as follows:
“30.2 Mine
The current system for allocating rostered personnel to posts in the mine is set out in
the policy document issued in May 2017. That document may be changed by
agreement between Company management, the relevant Employees, and/or their
union(s), and agreement will not be unreasonably withheld. Where agreement cannot
be reached, the matter can be resolved through the dispute resolution procedure under
this Agreement, taking into consideration factors including occupational health and
safety, fatigue, access to breaks, skills, and operational needs.”
1 [2020] FWC 3992.
[2020] FWCFB 7060
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 7060
2
(our emphasis)
[3] In the Decision, the Deputy President characterised clause 30.2 as follows:
“Clause 30.2 of the Agreement provides that the system for allocating rostered
personnel to posts at the mine is set out in a policy document issued in May 2017, that
this document may be changed by agreement, and that agreement will not be
unreasonably withheld.”2
[4] The parties have named the “policy document issued in May 2017” that is referred to
in clause 30.2, the “allocation policy”. It states, as follows:
“30 May 2017
AGL Loy Yang allocation of rostered personnel to posts in the mine policy document
In accordance with clause 30.2 of the AGL Loy Yang Enterprise Agreement 2017
(Agreement), the following policy document sets out the system for allocation of
rostered personnel to posts in the mine as at the commencement of the Agreement.
Where required, MOs will be allocated to posts in the order shown below:
(a) Two MFs to the MF posts;
(b) Two CDOs or, in the absence of a second CDO, one CDO and one
MO to coal plant;
(c) Two Level 8 MOs / CDOs to the DST;
(d) Two Level 8 MOs / CDOs to the CAST
(e) MO / CDO to Control Centre post;
(f) Three MOs / CDOs to the stacker stream;
(g) MOs / CDOs to the dredger stream;
(h) Two MOs / CDOs to the CA posts;
(i) Two MOs / CDOs to the second stacker;
(j) If spare MOs / CDOs are available, they will fill the remaining MO vacancies. If
further spare MOs / CDOs are available, they may fill a remaining OFR vacancy.”
(our emphasis)
[5] As is apparent from its wording, the allocation policy states that, “where required”,
mine operators will be allocated to posts in a particular order and in prescribed numbers. An
earlier dispute was the subject of a decision of the Deputy President on 26 November 20183
(the First Decision). The Deputy President found in the First Decision that the words “where
required” in the allocation policy meant “objectively needed”. In doing so, the Deputy
President rejected the Respondent’s contention that its assessment of its own requirements
was determinative of when the allocation arrangements in the policy document were
“required”.
2 Ibid at [2].
3 Construction, Forestry, Maritime, Mining and Energy Union v AGL Loy Yang Pty Ltd [2018] FWC 4875.
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[6] As is noted by both parties, the First Decision was not the subject of an appeal.
[7] Following the First Decision, the Respondent developed the “allocation tool” to which
we have referred in paragraph [1] above, the purpose of which the Deputy President
described as follows:
“…to ascertain when the allocation of conveyer attendants will be objectively needed,
and hence ‘required’ for the purposes of the policy. The tool asks ten questions, all of
which the company says relate to considerations that bear on whether conveyor
attendants are objectively needed on shift. Conveyor attendants will not be allocated to
shift only in the event that the answers to all ten questions tell in favour of this
course.”4
[8] The Appellant contends the catalyst for the dispute was the Respondent’s proposal to
utilise the allocation tool to affect the manning allocations with respect to the dredger support
team (DST) and conveyor attendant stacker team (CAST), plus the conveyor attendants (CAs)
posted to work on conveyors and pumps.
[9] As outlined above, the allocation tool comprises a list of ten questions. The Appellant
asserts the evidence of the Respondent before the Deputy President was that the questions
were intended to be answered immediately before the start of each shift by the Shift
Supervisor. Scores were to be assigned to the possible answers to the questions and if the total
score added up to less than eleven, no mine operators (MOs) would be allocated to the CA
post.
[10] The interaction between the allocation tool and the allocation of employees to the DST
and CAST posts is said by the Appellant to be twofold. First, the series of questions in the
allocation tool primarily concern matters affecting the predicted workload of employees
allocated in the DST and CAST posts, rather than the workload of employees allocated to the
CA role. Second, in circumstances where the allocation tool determines that there will be no
allocation to the CA post, and no allocation is made, the employees allocated to the DST
and/or CAST posts would be directed to perform the entirety of the work usually performed
by employees allocated to the CA post, in addition to the work relevant to their DST or CAST
posts.
[11] The Appellant submits the Respondent relied on the characterisation of the allocation
tool as not being a change to the allocation policy and therefore within the terms of the
allocation policy and clause 30.2 of the Agreement, rather than contending that the
Appellant’s lack of agreement under clause 30.2 was unreasonable.
[12] The Appellant characterises the use of the allocation tool as a change to the allocation
policy, withheld agreement to the introduction of the tool, and opposed its introduction. It
submits that while the proposed change in the work to be undertaken by employees in the
DST and CAST posts is not apparent on the face of the tool, it is central to its application, and
is the nub of the dispute between the parties.
4 [2020] FWC 3992 at [5].
[2020] FWCFB 7060
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[13] With the Appellant having objected to the use of the allocation tool, the dispute was
raised and the Deputy President, with the agreement of the parties, determined the following
question:
“whether the allocation tool as referred to in the witness statement of Mr Murnane
‘applies the allocation policy in a lawful manner because, for the reasons explained in
Mr Murnane’s statement, it arrives at a result which allocates mine operators in
accordance with objective need.’”5
[14] The Deputy President determined the allocation tool applies the allocation policy in a
“lawful manner”, in the sense that it is consistent with the policy’s stipulation that the
allocation arrangements will apply ‘where required.’ The Deputy President’s determination
was based on his finding that the tool establishes a reasonable framework for ascertaining
whether the allocation of operators to the CA posts will objectively be needed.
Grounds of Appeal and Submissions
[15] The approach of a Full Bench to the determination of an appeal depends on the nature
of the decision below. In the present case, the Deputy President was resolving a dispute as to
whether the allocation tool applies the allocation policy in a lawful manner because it arrives
at a result which allocates mine operators in accordance with objective need.
[16] The Appellant submits that in the First Decision, the Deputy President answered
questions about the proposal that was before the Commission at that time, but finality was
never actually achieved. It submits that in that matter, the Deputy President did not have the
allocation tool before him and as such, rather than being an appeal against the First Decision,
this appeal is about whether or not the allocation tool is consistent with the Agreement and
allocation policy.
[17] In the grounds for appeal advanced in the notice of appeal, the Appellant contends that
the Deputy President erred in finding at paragraph [59] of the Decision that the Respondent’s
allocation tool applies the allocation policy in a ‘lawful’ manner. The contention of the
Appellant is that the allocation tool is not consistent with the allocation policy because its
proposed use changes the roles and responsibilities of employees allocated to the posts and
departs from the order of allocation.
[18] In particular, the Appellant submits the Deputy President erred because:
(a) Contrary to what the Deputy President found at paragraphs [28] and [41] - [43] of
the Decision, the allocation tool is not consistent with the allocation policy referred
to in clause 30.2 of the Agreement because it does apply a different order of
allocation and further provides for, what are in substance different “hybrid” posts
not contained in the allocation policy. In particular, contrary to the finding of the
Deputy President, the effect of the allocation policy and clause 30.2 of the
Agreement is that, without a change to the allocation policy, an employee allocated
to the DST or CAST post cannot also be allocated to perform the entirety of the
work usually performed by employees in the CA post.
5 Ibid at [9].
[2020] FWCFB 7060
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(b) Contrary to what the Deputy President found at paragraph [47] of the Decision, the
effect of clause 30.2 of the Agreement, which expressly preserves “the current
system for allocating rostered personnel to posts in the mine” and the allocation
policy referred to in clause 30.2 of the Agreement, is that the Agreement and
allocation policy do limit what work may be done in a post referred to in the
allocation policy.
[19] The Appellant submits;
the integrity of allocation policy is undermined to the point of meaningless if the
type of work and operational responsibility allocated to posts in the allocation
policy can be unilaterally altered in this way by the Respondent.
the tool is inconsistent with the allocation policy because by altering the type of
work and operational responsibility of employees allocated to the DST and/or
CAST posts, the order of allocation is changed.
If under the allocation tool, the work usually performed in the CA post is
performed wholly by employees allocated in the DST and/or CAST posts, that
work has been, in substance, allocated above its position in the order required by
the allocation policy and is therefore inconsistent with the policy.
the changes brought about by the underlying premise of the tool are different in
character to what is “objectively needed”, which is what the Deputy President
earlier found the words “where required” in the allocation policy to mean.
if the work is not objectively needed to be done, the allocation policy allows for no
allocation to be made. However, what the utilisation of the allocation tool proposes
is fundamentally different in substance. When applied, in circumstances where it is
determined by the management representative answering the questions that there is
a score of 10 (subject to the discretion of the Respondent), no allocation will made
to the CA post, not because there is not an objective need for work to be performed
within the area of responsibility of the CA post, but because that work will be
done, in its entirety, by employees allocated to the DST and/or CAST posts. That
change is the type of change that clause 30.2 of the Agreement envisages as being
able to be done only by agreement of the parties, or if that agreement is
unreasonably withheld, by arbitration “taking into consideration factors including
occupational health and safety, fatigue, access to breaks, skills, and operational
needs.”
[20] The core argument of the Appellant in seeking review is that the allocation tool alters
the way allocations are made in a way that is inconsistent with the allocation policy, in that it
redistributes work in its entirety from one post to another post. The Appellant submits the
Respondent cannot change what employees allocated to the respective posts do without
changing the current system of allocation of work and the order in which work is allocated. It
asserts the allocation system can only be changed through the procedure outlined in Clause
30.2 of the Agreement.
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[21] As to public interest considerations, in the alternative to its primary submission that
the right to appeal can be exercised without permission to appeal with which we deal below,
the Appellant submits permission to appeal should be granted for reasons including:
(a) the decision under appeal includes a significant error/s that warrant correction on
appeal;
(b) the decision under appeal manifests an injustice that warrants correction on appeal;
(c) the appeal is consistent with the preservation of public confidence in the
administration of justice;
(d) the decision is inconsistent with the Agreement and accordingly was beyond
jurisdiction; and
(d) such other reasons as the Commission thinks fit
[22] The Appellant seeks that the Decision be quashed on the basis that the allocation tool
does not apply the allocation policy in a manner that is consistent with clause 30.2 of the
Agreement.
[23] The Respondent submits that the dispute before the Deputy President was narrow and
did not involve the interpretation of the agreement because that had been done in the First
Decision. Instead, it submits the dispute was a sequel and about the application of its
proposal to use a new managerial tool to assess when CAs will be allocated to shifts in
accordance with objective need. The Respondent submits that the Deputy President’s finding
was that the allocation tool was a reasonable framework for ascertaining this and a lawful
application of the allocation policy as it had been interpreted by him in the First Decision.
[24] The Respondent submits the two appeal grounds put forward by the Appellant do not
articulate a challenge to the relevant finding of the Deputy President in the Decision but
instead reveal an attempt to relitigate matters from the First Decision, which it did not appeal.
The Respondent submits that the Appellant’s contention that the implementation and use of
the allocation tool would amount to a unilateral change to the allocation policy contrary to
clause 30.2, is contrary to the Deputy President’s finding in the First Decision that “where
required” in the allocation policy means “where objectively needed”. It says that
interpretation cannot be challenged in this appeal.
[25] The Respondent noted the Appellant’s focus on changes to the nature of the work that
MOs allocated to the DST and CAST posts will be required to perform where its use of the
allocation tool identifies that no allocation to the CA post is required on a particular shift. It
submits the Appellant’s contentions that the allocation tool provides for “hybrid posts” not
present in the allocation policy and that it changes the order in which the allocations to posts
are made, are incompatible with the effect and operation of the allocation policy as
determined by the Deputy President in the First Decision.
[26] The Respondent contends the allocation policy concerns the allocation of MOs to
posts rather than the performance of any particular work by them when allocated to those
posts. It says that neither the allocation policy nor any term of the Agreement set up a
demarcation between the tasks or work which can be required of employees allocated to
[2020] FWCFB 7060
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particular posts. Rather, it says the allocation policy and the posts referred to in it provide a
system of allocation to allow for the performance of the work required on a particular shift,
and does not prohibit the Respondent or the MOs themselves from exercising sensible
flexibility in relation to how that work is to be performed.
[27] The Respondent asserts the Appellant conflates the concept of an employee’s “role”
with the “post” to which they have been allocated pursuant to the allocation policy. In each
case, the “role” of employees allocated to the CA, DST and CAST posts is that of an MO (or
CDO) and the MOs who are allocated to the DST and CAST posts will always have the
competencies to undertake work that might otherwise be performed by MOs allocated to the
CA post. The Respondent contends that if, objectively, no allocation to the CA post is
required because the combination of MOs allocated to the DST and CAST posts can safely
and efficiently handle all of the work required on that shift that would otherwise be performed
by MOs allocated to the CA post, an allocation to the CA post need not be made because such
an allocation is not objectively required.
[28] The Respondent contends that permission to appeal should not be granted, submitting
the Appellant has not identified the significant error/s or injustice that it claims arise from the
Decision. It submits that the two grounds of appeal articulated by the Appellant in the notice
of appeal concern matters determined to finality in the First Decision, which cannot be
challenged in this appeal. The Respondent further says that the Appellant has not identified
any grounds on which the granting of permission to appeal could otherwise be said to be in
the public interest.
Permission to Appeal
[29] The Appellant contends that in the present case, permission to appeal is not required
because of the wording of clause 27.3 of the Agreement. Clause 27.3 provides:
“27.3 Review process
(a) A party may seek a review of the FWC’s decision within seven days of receipt of
the decision or the provision of reasons for the decision, whichever comes later.
(b) An application for a review of the FWC’s decision will be provided to the Parties
and the FWC in writing detailing the grounds for the review.
(c) Unless agreed otherwise by the parties to the dispute, the review will be conducted
according to the principles applying to an appeal under the Act, including where a stay
is sought.
(d) The parties to the dispute and the review panel of the FWC will use their best
endeavours to ensure that the review process is expedited.
(e) The decision of the review panel of the FWC is final, subject to any other legal
right of appeal or review that might exist.”
[30] The Respondent contends that if an appeal under the Act is made, clause 27.3
(whatever its scope) cannot remove the statutory requirement in s.604(1) of the Act for the
Appellant to seek and be granted permission to appeal. It submits that even if the parties were
able by agreement to modify the requirements of s.604(1) of the Act so far as it applies to an
[2020] FWCFB 7060
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appeal of a dispute arbitration outcome, the express terms of clause 27.3(c) itself do not
suggest an intention to discard the requirement for permission to appeal to be granted. The
Respondent also submits that irrespective of what might be said about the interpretation of
clause 27(3), the Full Bench would deal with the matter exactly as it would dispose of an
appeal, which is not the exercise of a private arbitration power. This has two important
implications – first permission has to be granted before the appeal can be considered, and
second the appeal cannot succeed unless there is appealable error.
[31] Further, the Respondent submits that clause 27.3 is expressed in different terms to the
clause considered in “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar
Pty Ltd6 (Silcar), the authority relied upon by the Appellant in submitting that clause 27.3
provides an independent right of appeal for which permission is not required. The Respondent
submits the words “may seek a review” in clause 27.3(a) do not suggest a right which exists
independently of the Act’s appeal process.
[32] We agree with the Respondent’s submissions. In our view, the language of clause 27.3
does not outline the availability of an independent right to appeal under the Agreement, free
from the fetters of s.604. We note that in Silcar and Appeal by Shop, Distributive and Allied
Employees Association,7 the Commission found the wording of the dispute settlement
procedures conferred an independent right of appeal. However, the wording in those cases
differs from that found in clause 27.3. We consider the conclusions of the Full Bench of the
Commission in EnergyAustralia Yallourn Pty Ltd T/A EnergyAustralia v Construction,
Forestry, Mining and Energy Union8 (EnergyAustralia) provide more useful guidance. In that
case, the dispute resolution procedure under consideration was outlined in almost identical
terms to those of clause 27.3. Consistent with the observations and reasoning of the Full
Bench in EnergyAustralia,9 it is our view that:
a) Clause 27.3 does not use language that connotes the existence of an independent right
to appeal under the Agreement, unconstrained by s.604;
b) Clause 27.3 appears to contemplate that s.604 will apply;
c) ‘Seeking’ an appeal is compatible with the concept of a party requiring the permission
of the Commission in order to appeal a decision;
d) Where clause 27.3(c) confirms that an appeal will be conducted “according to the
principles applying to an appeal under the Act”, such principles include those
concerning permission to appeal; and
e) While clause 27.3 does not confer an independent right of appeal, it nonetheless “has
work to do” because it confirms that the ordinary appeal rights under the Act are
available and modifies the timeframe for making an appeal (appeals are to be filed
within 7 days, rather than 21 days (clause 27.3(a)) and the parties, together with the
Commission, are required to endeavour to expedite the appeal process (clause
27.3(d)).
[33] As we have concluded the Agreement does not confer on the parties an independent
right to appeal, the question of what rights the parties may have to appeal is to be determined
6 [2011] FWAFB 2555.
7 [2013] 2814.
8 [2017] FWCFB 3574.
9 Ibid at [12] and [13].
[2020] FWCFB 7060
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by reference to the Act. Section 604 of the Act provides for an appeal by an aggrieved person
to the Full Bench of the Commission, but only with the permission of the Full Bench. The Act
does not confer on a party a right to appeal a decision of the Commission.10 Permission to
appeal must first be obtained.11
[34] Subsection 604(2) of the Act requires the Commission to grant permission to appeal
if satisfied that it is ‘in the public interest to do so’. The task of assessing whether the public
interest test is met is a discretionary one involving a broad value judgment.12 In
GlaxoSmithKline Australia Pty Ltd v Makin 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.”13
[35] Other than granting permission to appeal on a public interest basis, the grounds for
granting permission to appeal are not specified. Considerations which have traditionally been
treated as justifying the grant of permission to appeal include that the decision is attended
with sufficient doubt to warrant its reconsideration and that substantial injustice may result if
refused.14
[36] Further, 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.15 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.16
Consideration
[37] We do not consider that this is a case where permission to appeal is required to be
granted under s.604(2) on the public interest ground or should otherwise be granted on
discretionary grounds. We have reached that conclusion for a number of reasons.
[38] First, we do not consider that the Decision raises any issue of importance or general
application that would enliven the public interest. The Decision concerns a mechanism for the
10 DP World Brisbane Pty Ltd v Maritime Union of Australia (2013) 237 IR 180; [2013] FWCFB 8557 at [42].
11 Section 604(1) Fair Work Act 2009 (Cth).
12O’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, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
13 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
14 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
15 Wan v AIRC (2001) 116 FCR 481 at [30].
16 GlaxoSmithKline Australia Pty Ltd v Making [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; Coal
& Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013]
FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian
Taxation Office [2014] FWCFB 1663.
[2020] FWCFB 7060
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allocation of work at one workplace and turns on its own facts and circumstances. Further, the
Deputy President did not seek to establish a general rule for allocations to the CA post. He
acknowledged that there may in the future be cases where the parties disagree about the
application of the tool to particular facts and that the Commission may be called upon to
determine such disputes.
[39] Second, there is not a diversity of decisions at first instance so that guidance from a
Full Bench is required.
[40] Third, we do not consider that the result of the arbitration by the Deputy President is
counter intuitive or that the legal principles applied appear disharmonious when compared
with other recent decisions dealing with similar matters.
[41] Fourthly, the grounds of appeal are not sufficiently arguable to justify the grant of
permission to appeal. Although in determining whether permission to appeal should be
granted it is unnecessary and inappropriate for the Full Bench to conduct a detailed
examination of the grounds of appeal,17 it is necessary to engage with the appeal grounds to
consider whether they disclose an arguable case of error. We deal with the grounds raised
briefly as follows:
(a) The Appellant contends that contrary to what the Deputy President found at
paragraphs [28] and [41] - [43] of the Decision, the allocation tool is not consistent
with the allocation policy referred to in clause 30.2 of the Agreement because it
does apply a different order of allocation and further provides for, what are in
substance different “hybrid” posts not contained in the allocation policy. In
particular, the Appellant submits that contrary to the finding of the Deputy
President, the effect of the allocation policy and clause 30.2 of the Agreement is
that, without a change to the allocation policy, an employee allocated to the DST
or CAST post cannot also be allocated to perform the entirety of the work usually
performed by employees in the CA post.
As to this, we consider it was open to the Deputy President to find there is no strict
demarcation between posts and that there are occasions upon which Mine
Operators in DST and CAST posts perform the work of a CA. Further, we agree
with the Deputy President’s findings that the allocation tool will not create hybrid
posts and find no error in his finding at [42] of the Decision:
“The company’s tool does not say that the policy no longer applies, or that a
different order of allocation will apply, or that different posts will exist, or that
different numbers of employees will be deployed. Instead, it addresses on a
shift by shift basis the circumstances when, under the terms of the policy itself,
allocation of operators to the CA post will not, objectively, be needed. These
are expected to be rare circumstances.”
We also agree with the ultimate conclusion of the Deputy President that the
allocation tool does not alter the policy but rather, works within the policy. It
follows that we are not satisfied there is an arguable case of error in relation to
these parts of the Decision.
17 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[2020] FWCFB 7060
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(b) The Appellant also contends that contrary to the Deputy President’s finding at
paragraph [47] of the Decision (that neither the allocation policy nor the
Agreement limit what work may be done in a post), the effect of clause 30.2 of the
Agreement, which expressly preserves “the current system for allocating rostered
personnel to posts in the mine” and the allocation policy referred to in clause 30.2
of the Agreement, is that the Agreement and allocation policy do limit what work
may be done in a post referred to in the allocation policy. We respectfully
disagree. Mine Operators may be assigned to any of the DST, CAST and CA posts
and can perform tasks across multiple posts. This is consistent with the Deputy
President’s finding that there is simply no language in either clause 30.2 or the
allocation policy that limits what work may be done in a post. Further, as the
Deputy President found, it is plain from the use of the words “where required” that
the allocation policy contemplates situations where particular Mine Operator
allocations will not be required. Equally, it may also be observed that the words
“where required” also operate to ensure that a dispute can be brought if the view
was ever taken that the non-allocation of Mine Operators to CA posts was
occurring in ways that were creating an unreasonable workload for the MOs in the
DST or CAST posts. The application of the allocation tool would in such a case be
scrutinised and this was recognised by the Deputy President.18 We are not satisfied
that there is an arguable case of error in relation to this part of the Decision.
[42] Fifth, we are not satisfied that any substantial injustice to the Appellant would arise if
permission to appeal is not granted. This is because no arguable case of appealable error is
disclosed in the Decision. Additionally, the Deputy President qualified his determination by
stating that the allocation tool is not a categorical formula that produces an unimpeachable
result and will need to be applied to actual shifts, with the ultimate question always being
whether the allocations to the CA posts on shifts are objectively required. The Deputy
President further noted that in cases where the parties disagree about the application of the
allocation tool to particular facts, the Commission may be called upon to determine such
disputes.
[43] Sixth, we do not consider it to be seriously arguable that the appeal is consistent with
the preservation of public confidence in the administration of justice. One of the findings of
the Deputy President in the First Decision was that changes to the allocation arrangements in
the allocation policy are allowable without agreement if the relevant allocation arrangements
are not objectively needed.19 In this dispute, the Deputy President was asked to determine
whether the allocation tool applies the allocation policy in a lawful manner and has, based on
the standard for allowable changes he determined was applicable in First Decision, concluded
the allocation tool established a reasonable framework for ascertaining whether the allocation
of operators to CA posts will objectively be needed. It would not, in our view, be consistent
with the preservation of public confidence in the administration of justice to permit, through
this appeal, a re-litigation of matters determined in the First Decision, but not appealed. We
also accept the Respondent’s submission that the only issues of any substance advanced by
the Appellant were dealt with in the first decision of the Deputy President and that by
definition, this cannot amount to appealable error in respect of the decision under appeal.
18 [2020] FWC 3992 at [48].
19 [2018] FWC 4875 at [72].
[2020] FWCFB 7060
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Conclusion
[44] Permission to appeal is refused. The appeal is accordingly dismissed.
DEPUTY PRESIDENT
Appearances:
A Kentish for the Appellant.
D Williams for the Respondent.
Hearing details:
2020.
Brisbane (via Microsoft Teams).
19 October.
Printed by authority of the Commonwealth Government Printer
PR725853
IR WORK COMMISSION THE EAL OF THE
