1
Fair Work Act 2009
s.604—Appeal of decision
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
v
Endeavour Energy
(C2020/7285)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE
SYDNEY, 9 MARCH 2021
Appeal against decision [2020] FWC 4822 of Deputy President Sams at Sydney on 10
September 2020 in matter number C2020/605 – permission to appeal granted – appeal
upheld.
Overview
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia (the Appellant) has lodged an appeal under s 604 of
the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against a
Decision1 of Deputy President Sams (Deputy President) issued on 10 September 2020. The
Decision dealt with an application made by the Appellant under s 739 of the Act for the Fair
Work Commission (the Commission) to deal with a dispute in accordance with the dispute
settlement procedure in clause 34 of the Endeavour Energy Enterprise Agreement 2017 (the
Agreement).
[2] The matter on appeal was subject to a hearing on 5 February 2021. The Appellant and
the Respondent sought permission to be legally represented. The Full Bench granted the
parties’ applications for permission to be represented pursuant to s 596(2)(a) of the Act in the
hearing.
[3] The Full Bench has heard the parties on permission to appeal and the substantive
appeal.
Background
1 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Endeavour Energy [2020] FWC 4822 (the Decision).
[2021] FWCFB 1263
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 1263
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[4] Appendix B of the Agreement deals with Allowances. These include an Electrician’s
Licence Allowance (the Allowance). At Clause 2.2 of Appendix B, the following provisions
relating to the Allowance are set out:
“2.2 Electrician’s License Allowance
2.2.1 Consistent with the outcome of FWC matter C2014/1137 some employees are
eligible to receive the Electrician’s Licence Allowances.
2.2.2 Employees that have been notified in writing that they are a Tier 1 (grandfathered
employee) for the purposes of ELA, and who are not entitled to ELA pursuant to the
decision of the Fair Work Commission will continue to receive the allowance at 1.2.1
whilst they remain in their current position only.”
[5] The dispute resolution procedure outlined at Clause 34 of the Agreement applies to all
disputes “arising out of the employer-employee relationship”, characterises such disputes as
Tier 1, Tier 2 or Tier 3 disputes and in the case of a Tier 3 dispute, any of the Appellant, the
Respondent or an employee of the Respondent (or their representative) may refer the dispute
to the Commission for conciliation and/or arbitration, with rights to appeal being reserved.
[6] As was outlined in the Decision, the dispute in question concerns the interpretation of
the effect and application of an earlier decision of the Deputy President involving the same
parties made on 31 January 20182 (31 January 2018 Decision).The 31 January 2018 decision
was expressly referred to by the parties in clause 2.2.1 of the Agreement as “FWC matter
C2014/1137”. The 31 January 2018 decision had determined a dispute involving the payment
of the Electrician’s Licence Allowance under the Endeavour Energy Enterprise Agreement
2012.
[7] At paragraph [55] of the 31 January 2018 Decision the Deputy President determined:
“In my judgement, if the employer requires an employee to perform customer
work within the framework of being 'principally employed' to perform a range of
duties and tasks associated with both customer work and Network work, then that
employee is entitled to the ELA. Put another way, I am satisfied that the term
'principally employed' encompasses employees who perform customer work,
irrespective of the proportion of time spent in performing that work, compared to
any other work. Of course, I hasten to add that this notion does not comprehend an
employee who is not employed at all to perform customer work, ...”
[8] The Respondent claims the 31 January 2018 Decision only applied to a select group of
26 employees whereas the Appellant claims there was no such limitation and it has broad
application, with the Allowance payable to any employee who holds a current electrical
licence and who is required to perform duties and tasks associated with customer work.
[9] The Appellant asserts that following the 31 January 2018 Decision, the Respondent
has failed to pay the Allowance to a number of employees who hold an electrical licence and
are required to perform duties and tasks associated with customer work
2 [2018] FWC 440
[2021] FWCFB 1263
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[10] The Appellant having filed the dispute, the Respondent contended the Commission
had no jurisdiction to deal with the dispute on the following grounds:
1. There can be no dispute in the terms set out in the Application by reason of the
combination of the scope of the dispute in Matter C2014/1137, the agreement reached
by the parties as part of that dispute and the resolution of that dispute in the following
decisions of the Commission:
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia v Endeavour Energy [2015] FWC 1505 (9
March 2015) (Hamberger Decision);
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia v Endeavour Energy [2015] FWCFB 6750
(29 October 2015); and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia v Endeavour Energy [2018] FWC 440 (31
January 2018) (the 31 January 2018 Decision).
2. Clause 2.2 of Appendix B "Electricians Licence Allowance" in the Agreement and the
No Extra Claims clause at clause 2.3 of the Agreement.
3. The Appellant had failed to comply with clause 34 of the Agreement.
[11] While it was also contended that the Commission should refuse to entertain the dispute
on the grounds of delay, the Respondent ultimately did not press this point and the Deputy
President made no determination on that issue.
Decision under appeal
[12] After outlining relevant provisions of the Agreement and sections 738 and 739 of the
Act,3 the Deputy President considered the evidence and submissions of both parties4 and
made the observation that they relied on the decision of University of New South Wales v
National Tertiary Education Industry Union,5 from which he made particular reference to the
following:
“Whether the Commission has jurisdiction pursuant to dispute settlement procedures
in a workplace agreement is to be decided having regard to all of the material before
the Commission. Reliance on the terms of the application cannot be conclusive one
way or the other on the question of jurisdiction.”6
[13] We note the following observations were then made by the Deputy President:
3 Decision [5]-[7].
4 Ibid [8]-[55].
5 [2009] AIRCFB 571.
6 Ibid [30].
[2021] FWCFB 1263
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The words in the application and the relief sought could not be open to any doubt or
confusion and in deciding jurisdiction, the Commission is to have regard to all the
material before the Commission;7
Given the two single member decisions and one Full Bench decision and the
abundance of historic background material, he was more than well placed to
determine the question of jurisdiction;8
What the union was seeking was entirely inconsistent with its approach and the
conduct of its case before him in 2017 and it was abundantly clear by the conduct of
the parties and their express intentions and the written communications at that time,
there remained 26 employees in Category 3 that remained in dispute;9
Given the litigation and the point which was reached, the Respondent was entitled to
reasonably believe the dispute about eligibility of the original 466 employees had
been finalised by the 31 January 2018 Decision;10
There was some potency in the argument of the Respondent that the present dispute is
not a dispute at all, let alone permitted by dispute resolution procedure outlined at
Clause 34 of the Agreement as a ‘dispute arising out of the employer/employee
relationship’;11
At best, what the Appellant sought in asking him to interpret his own decision was
novel and extraordinary because this would require him to give evidence of what he
intended by the 31 January 2018 Decision but more probably, such a request would
be contrary to s 739 of the Act and an impermissible exercise of judicial power;12
His words in the 31 January 2018 Decision spoke for themselves and reflected what
the Appellant understood their case was about, how it conducted its case and what he
understood was the position of both parties at the time;13
He did not accept that paragraph [55] the 31 January 2018 Decision was a complete
picture of the outcome of that case, absent consideration of the decision as a whole;14
If the email exchange on 13 June 2017 relied on by the Appellant was its best
evidence in light of the case it ran, it was little more than stretching an insignificant,
innocuous inquiry to something way beyond its importance and relevance;15
It was difficult to reconcile the limitations set out in Cl 2.2.2 of Appendix B of the
Agreement, with the Appellant’s argument that Cl 2.2 provides an open-ended
gateway to other unidentified employees to claim eligibility for the Allowance and the
Appellant’s reliance on Cl 2.2 extended its scope by straining the plain ordinary
meaning of the words beyond what was bearable.16
[14] The Deputy President concluded that the dispute was not jurisdictionally competent
and also stated he would otherwise dismiss it as to its merits. The Deputy President added that
7 Decision [57].
8 Ibid [58].
9 Ibid [59].
10 Ibid.
11 Ibid [60].
12 Ibid [61].
13 Ibid [62].
14 Ibid.
15 Ibid [67].
16 Ibid
[2021] FWCFB 1263
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he would dismiss the application on the basis that it was an extra claim, given the relief
sought was to extend the Allowance to employees who currently do not receive it.
Applicable appeal principles
[15] An appeal under s 604 of the Act is an appeal by way of rehearing and the
Commission’s powers on appeal are exercisable only if there is error on the part of the
primary decision maker.17 There is no right to appeal and an appeal may only be made with
the permission of the Commission. Section 604(2) of the Act states:
“Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.”
[16] With s.604(2) of the Act requiring 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.18 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.”19
[17] 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.20
Consideration
[18] The grounds for the appeal were expressed in nine parts, asserting that the Deputy
President erred:
1) In failing to find that the Commission had jurisdiction to deal with the dispute under
Clause 34 of the Agreement.
2) Because he failed to find that there was a dispute between the parties concerning the
entitlement of employees to be paid an allowance under cl.2.2.1, Appendix B of the
Agreement.
17 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
18O’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].
19 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
20 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
[2021] FWCFB 1263
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3) In failing to find that dispute about the entitlement of employees to be paid an
allowance was not a dispute arising out of the employment relationship.
4) Because he wrongly considered that the Commission as being asked to deal with the
same dispute that the Commission had dealt with in the 31 January 2018 Decision.
5) In finding that the Commission could not as part of a dispute consider the meaning
and effect of its earlier decision in resolving another dispute, that such a process was
contrary to s.739 of the Act, an impermissible exercise of judicial power or not a
matter arising out of the employment relationship.
6) In failing to find that the common intention of the parties in earlier proceedings before
the Commission was solely directed to ascertaining how Appendix B of a predecessor
agreement was to be applied and was not about the entitlement of 26 named
employees entitlements under AppendixB.
7) In finding that the Appellant was seeking a new entitlement for employees
inconsistent with the no extra claims commitment in the Agreement.
8) In finding that the relief sought in the application was to extend employee
entitlements to an allowance and was therefore inconsistent with ss.739(5) of the Act.
9) By denying the Appellant procedural fairness in finding that he would ‘otherwise
dismiss the matter on its merits’ because he failed to give the Appellant an
opportunity to be heard about the merits of the matter.
[19] At the heart of the Appellant’s appeal is the complaint that the Deputy President erred
in determining that the Commission did not have jurisdiction to deal, pursuant to Clause 34 of
the Agreement, with a dispute that concerned Clause 2.2 of the Agreement and more
particularly, whether certain employees are entitled to receive the Allowance. We note the
Deputy President attached much significance to having authored the 31 January 2018
Decision and his familiarity with previous Commission decisions. However, while the 31
January 2018 Decision resulted in an interpretation of the definition of the Electrician's
Licence Allowance in Appendix B of the Endeavour Energy Enterprise Agreement 2012, the
Allowance described in Clause 2.2 of the Agreement has yet not fallen for interpretation.
[20] The reasons of the Deputy President reveal he relied on considerations going
exclusively to the merits of the Appellant’s application in determining the dispute was “not
jurisdictionally competent.” In doing so, we consider the Deputy President erred because with
certain employees of the Respondent claiming an entitlement to the Allowance as described in
Clause 2.2 of the Agreement, the resulting dispute falls squarely within a dispute “arising out
of the employer-employee relationship.” We would uphold grounds one to four, all of which
go to the Appellant’s central complaint.
[21] Counsel for the Appellant acknowledged that whether or not there was a failure to
comply with the escalation points in the dispute resolution procedure in the Agreement was a
matter that could go to jurisdiction but he submitted, and we agree, that there was sufficient
evidence in the form of email correspondence between the parties indicating that employees
[2021] FWCFB 1263
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had raised the dispute firstly at the local level (Tier 1) before escalating it to the Tier 2 level in
accordance with the Agreement, before proceedings were commenced at the Commission.21
[22] The reliance on merit-based arguments also resulted in the Deputy President
incorrectly musing that resolving the dispute would require “an impermissible exercise of
judicial power.” Section 739 of the Act operating in conjunction with the dispute resolution
procedure outlined at Clause 34 of the Agreement authorises the Commission to exercise a
power of private arbitration in relation to the Allowance described in Clause 2.2 of the
Agreement. That the Commission’s powers to do so are dependent on the agreement of the
parties is in contrast to judicial power, which would be exercised independently of the consent
of the person against whom the proceedings are brought and result in a judgment or order that
is binding of its own force.22 We would uphold ground five.
[23] Turning next to ground nine, while the application was listed for hearing involving the
jurisdictional objections, the Deputy President proceeded to make the finding that he would
“otherwise dismiss it as to its merits.”
[24] As was stated by the Full Bench in Peter Viavattene v Health Care Australia23:
“[28] It is clear that members of the Commission are bound to act in a judicial manner
and the principles of natural justice are applicable to hearings before the Commission.
The term ‘natural justice’ in the context of administrative decision making has been
equated to an obligation to act fairly or to accord procedural fairness. The requirements
of natural justice or procedural fairness are not prescribed in a fixed body of rules.
What is required is judicial fairness and what is fair in one case may be quite different
from what is required in another.
[29] The Commission’s obligations regarding the manner in which it must perform
its functions and exercise its powers are set out in ss.577 and 578 of the Act.
Relevantly, the Commission must act in a manner that:
is fair and just;
is quick, informal and avoids unnecessary technicalities;
is open and transparent; and
takes into account equity, good conscience and the substantial merits of the case.
[30] These obligations may be seen as incidents of a general duty on the
Commission to ensure a fair hearing. The concept of a fair hearing is fundamental to
the justice system and is at the very heart of the Commission’s obligations to the
parties who appear before it.”24 (references omitted)
21 AB at pages 567-577
22 Construction Forestry Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16 at [31]
&[32].
23 [2013] FWCFB 2532.
24 Ibid at [28]-[30].
[2021] FWCFB 1263
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[25] In Construction, Forestry, Mining and Energy Union v Ditchfield Mining Services Pty
Limited (Ditchfield),25 the Full Bench made the following observations about procedural
fairness:
“[34] Administrative decision-makers, including Members of the Commission, must
accord procedural fairness to those affected by decisions they make. What is required
to achieve this in any given case should be determined by reference to “what is
required in order to ensure that the decision is made fairly in the circumstances having
regard to the legal framework within which the decision is to be made”. The procedure
adopted by an administrative decision-maker can sometimes itself be shown to have
failed to afford a fair opportunity to be heard to a person. In such cases, a denial of
procedural fairness may be established by nothing more than that failure, unless the
failure did not deprive the person of the possibility of a successful outcome.
[35] However, not every breach of the rules of natural justice will affect a decision. As
the High Court observed in Re Refugee Review Tribunal; Ex parte Aala:
“Not every breach of the rules of natural justice affects the making of a decision. The
decision-maker may have entirely upheld the case for the party adversely affected by
the breach; or the decision may have turned on an issue different from that which gave
rise to the breach of natural justice. Breach of the rules of natural justice, therefore,
does not automatically invalidate a decision adverse to the party affected by the
breach. This principle was acknowledged by this court in Stead v State Government
Insurance Commission when it said that “not every departure from the rules of natural
justice at a trial will entitle the aggrieved party to a new trial”. Nevertheless, once a
breach of natural justice is proved, a court should refuse relief only when it is
confident that the breach could not have affected the outcome because “[i]t is no easy
task for a court … to satisfy itself that what appears on its face to have been a denial of
natural justice could have had no bearing on the outcome”. In this case, however, the
denial of natural justice did not affect the outcome. After analysing the reasons of the
second tribunal and the history of the proceedings, the best conclusion is that the
tribunal would have found that the prosecutor did not have a well-founded fear of
persecution even if it had had the four statements before it.”
[36] Where an obligation to accord procedural fairness to a person arises, that which is
required will also depend upon the circumstances in each case.”26
[26] The Appellant was denied procedural fairness as a result of the manner in which the
Deputy President conducted the proceedings before him. In circumstances where the Deputy
President listed the application to deal with the Respondent’s objection as to jurisdiction,
ruled on jurisdiction and then also stated he would otherwise have dismissed the application
before him on the merits, the Appellant was denied procedural fairness insofar as it was not
given an opportunity to be heard on the merits. As such, we would uphold appeal ground 9.
As to grounds 6-8, we observe that they involve complaints regarding merit-based findings
and suffer from the same denial of procedural fairness
Permission to appeal
25 [2019] FWCFB 4022.
26 Ibid at [34] – [36].
[2021] FWCFB 1263
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[27] We have read the Decision fairly and as a whole and considered all of the materials
filed by the parties. The failure of the Deputy President to deal with the application in
accordance with the jurisdiction conferred upon the Commission and to afford the Appellant
procedural fairness have caused an injustice to the Appellant. We are satisfied that it would be
in the public interest to grant permission to appeal. We will therefore grant permission to
appeal, uphold the appeal and quash the Deputy President’s Decision ([2020] FWC 4822).
The matter will be remitted to another member of the Commission so that the merits of the
dispute can be heard and determined.
VICE PRESIDENT
Appearances:
Mr R Reitano of Counsel on behalf of the Appellant
Ms K Nomchong SC on behalf of the Respondent
Hearing details:
2021.
Telephone hearing.
5 February.
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