1
Fair Work Act 2009
s.604—Appeal of decision
CPSU, the Community and Public Sector Union
v
Australian Broadcasting Corporation T/A ABC
(C2023/68)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER BISSETT
SYDNEY, 15 MAY 2023
Appeal against decision [2022] FWC 3316 of Commissioner McKinnon at Sydney on 19
December 2022 in matter number C2022/5631 – permission to appeal refused – appeal
dismissed.
Background
[1] The Community and Public Sector Union (CPSU) has applied pursuant to s 604 of the
Fair Work Act 2009 (Cth) (Act) for permission to appeal and, if granted, appeals a decision1 of
Commissioner McKinnon dated 19 December 2022 (Decision).
[2] The Decision determined an application by the CPSU pursuant to s 739 of the Act for
the Commission to deal with a dispute in accordance with the dispute resolution clause of the
ABC Enterprise Agreement 2019-2022 (Agreement).2
[3] The dispute concerned the applicable payments to be made to certain employees of the
Australian Broadcasting Corporation (ABC) for the performance of work while on call. The
dispute concerned a document called the On Call/Overtime Arrangements for IT and its
interaction with the terms of the Agreement.
[4] The Commissioner relevantly answered the agreed questions for determination in the
manner urged by the CPSU. Nevertheless, the CPSU contends that the Decision is affected “by
errors of jurisdiction, law and fact.”3
[5] For the reasons that follow, we decline to grant permission to appeal. Accordingly, the
application is dismissed.
The decision under appeal
[6] The issue before the Commissioner concerned the ABC’s reliance upon the On
Call/Overtime Arrangements for IT document to remunerate certain information technology
employees of the ABC for the performance of work while on call. These payment arrangements,
[2023] FWCFB 91
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc3316.htm
[2023] FWCFB 91
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and the interaction between the On Call/Overtime Arrangements for IT and the Agreement,
were the subject of disputation between the parties.
[7] The CPSU contended before the Commissioner, inter alia, that the ABC had given the
On Call/Overtime Arrangements for IT document the erroneous status of a “compensation
mechanism” pursuant to clause 24.4.2 of the Agreement and relied upon it to avoid the overtime
provisions of the Agreement.4 Clause 24.4 is, in full, as follows:
“24.4 Out of Hours Contact (On Call)
24.4.1 The ABC recognises that a marked variation in 'out of hours' contact and
return to work situations may occur across the ABC.
24.4.2 Where warranted, the ABC will establish, by agreement with affected
employees, a compensation mechanism based upon the nature of the contact
circumstances and the incidence of call-back requirements.”
[8] The parties agreed to three questions for arbitration. The questions, and the
Commissioner’s answers, are set out at [3] and [50] of the Decision. The questions and answers
are as follows:
1. Is the document known as “On Call/Overtime Arrangements for IT” a compensation
mechanism for the purposes of clause 24.4 of the ABC Enterprise Agreement 2019-
2022?
No.
2. How does a compensation mechanism established in accordance with clause 24.4 of
the 2019 Agreement interact with other provisions of the 2019 Agreement
conferring entitlements on employees, including overtime, minimum breaks
between shifts and Rostered Free Days (RFDs)?
Unless it is also an individual flexibility arrangement, a compensation mechanism
established under clause 24.4 of the 2019 Agreement can supplement, but not
displace, the terms of the 2019 Agreement, including those dealing with overtime,
minimum breaks between shifts and rostered free days.
3. Separately, having regard to clause 24.3.2 of the 2019 Agreement, if an employee
is engaged and paid at or above point 31 and in receipt of a market allowance, must
the ABC take into account that employee’s market allowance in the calculation of
the applicable overtime rate?
No, subject to the terms of any contract of employment, individual flexibility
agreement, salary package or buyout arrangement.
[9] In arriving at the answer to question one, and having regard to the history of “on call”
arrangements at the ABC as summarised at [19] to [38] of the Decision, the Commissioner
reasoned that that the On Call/Overtime Arrangements for IT is no more than a guideline
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explaining the practical operation of a document the Commissioner termed the 1996 Oncall
Payments Process.
[10] At [41]-[42] of the Decision, the Commissioner proceeded by observing that it could be
“readily inferred” from the history of clause 24.4 of the Agreement that the 1996 Oncall
Payments Process was agreed to by employees by their continued receipt of benefits in
accordance with its terms.5 The Commissioner stated:6
“For this reason, I find the 1996 Oncall Payments Process (as varied to 2006) to have
been established by agreement with affected employees as a compensation mechanism
for the purposes of the [Agreement].”
[11] It is this finding, which is the focus of the CPSU’s appeal grounds to which we now
turn.
Appeal grounds
[12] There are six substantive appeal grounds identified in the notice of appeal, which are
summarised below.7
[13] It is contended by appeal ground one that the Commissioner erred in the exercise of her
jurisdiction by concluding that the 1996 Oncall Payments Process was a compensation
mechanism in force under clause 24.4 of the Agreement.
[14] By appeal ground two, it is alleged that the Commissioner erred by not finding that the
1996 Oncall Payments Process was less beneficial to employees than the terms of the
Agreement.
[15] Appeal ground three raises various allegations of error with respect to the
Commissioner’s construction of clause 24.4 of the Agreement. In summary, it is contended that
the Commissioner erred by failing to find that (a) there was no compensation mechanism in
force, and (b) that a compensation mechanism is limited to dealing with compensation for being
on call (not the performance of work while on call). It is also said that the Commissioner erred
by finding that agreement could be inferred from performance, and that clause 24.4 had the
effect of continuing the operation of the 1996 Oncall Payments Process through successive
agreements. It is also alleged by ground three that the Commissioner erred by misconstruing
clause 24.3 concerning overtime and clause 6 with respect to the meaning of a “compensation
mechanism” under clause 24.4.
[16] It is contended by appeal ground four that the Commissioner erred by not finding that
any mechanism established under clause 24.4 or its predecessor clauses ceases to apply to
employees upon the instrument being replaced by a successor ABC enterprise agreement.
[17] By appeal ground five, it is alleged that the Commissioner erred by finding that, in
summary, that the 1996 Oncall Payment Process:
(a) was a compensation arrangement in force under clause 24.4 of the Agreement;
(b) was agreed and/or subsequently agreed and that agreement had not been withdrawn;
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(c) was established in the 2000 enterprise agreement and re-enacted in successor
agreements;
(d) was at the heart of the dispute.
[18] It is also alleged by ground five that the Commissioner erred in failing to find that the
1996 Oncall Payment Process conflicted with the Agreement and provided less beneficial
entitlements, and by making a finding regarding minimum overtime engagement periods.
[19] Appeal ground six contends that the Decision is unreasonable and/or unjust.
[20] The CPSU submits that it is in the public interest for the Commission to grant permission
to appeal in order to establish “the correct construction” of the Agreement, noting that the
outcome has implications for employees of the ABC who perform on call work. The CPSU
contends that the errors it identifies in the Decision are sufficient to warrant its reconsideration.
[21] The ABC’s position is that the appeal application is misconceived. It says that the
Commissioner answered the three agreed questions for arbitration. With respect to questions
one and two (noting that no issue is taken with respect to question three), the ABC observes:
(a) The CPSU contended that question one should be answered “No.”8
The answer given by the Commissioner was “No.”9
(b) The CPSU contended that question two should be answered “a validly made
compensation mechanism under clause 24.4 cannot operate such as to deprive
relevant employees of overtime payments and other entitlements provided under the
Agreement.”10
The answer given by the Commissioner was that “Unless it is also an individual
flexibility arrangement, a compensation mechanism established under clause 24.4
of the 2019 Agreement can supplement, but not displace, the terms of the 2019
Agreement, including those dealing with overtime, minimum breaks between shifts
and rostered free days.”11
[22] The ABC submits that, as the answers to the above questions demonstrate, the CPSU
seeks to appeal an application in which it “won,” noting that the CPSU does not seek to have
the Full Bench impose a different answer to the questions posed for determination. In this
respect, the ABC contends that permission to appeal should be refused because the application
is futile.
[23] Further, and in any event, the ABC contends that the appeal is not competent. It submits
that the appeal is not brought against a “decision” of the Commission and is therefore not
properly an appeal under s 604 of the Act. The ABC contends that the CSPU simply criticises
findings and observations made by the Commissioner but does not challenge the result.
Consideration
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[24] Clause 60.1.7 of the Agreement provides the parties with a right to appeal a decision of
the Commission made in accordance with the provision. The appeal must be to a Full Bench of
the Commission “in accordance with” s 604 of the Act. The language “in accordance with”
s 604 connotes a substantial measure of consistency with the provision.12
[25] By s 604(1) of the Act, “a person who is aggrieved by a decision” of the Commission
“may appeal the decision” with permission. We commence our analysis by considering the term
“decision” within the ambit of the Commission’s jurisdiction to arbitrate disputes concerning
matters arising under an enterprise agreement.
[26] Division 3 of Part 5-1 of the Act deals with “Conduct of matters before the FWC” and
Sub-division D of Division 3 deals with “Decisions of the FWC.”13 For the purposes of Part 5-
1 of the Act which contains s 604, a “reference…to a decision of the FWC includes any decision
of the FWC however described.”14
[27] The Commissioner’s decision was made in the context of an arbitral determination
pursuant to ss 595(3) and 739(4) of the Act.15 Section 739(4) provides that “[i]f, in accordance
with the term, the parties have agreed that the FWC may arbitrate (however described) the
dispute, the FWC may do so.”16
[28] Where the Commission arbitrates a dispute in accordance with a dispute resolution term
in an enterprise agreement, pursuant to its powers in ss 595(3) and 739(4), s 601(1)(a) of the
Act provides that the “decision” must be in writing. Section 601(2) provides that the
Commission may give “written reasons” for the decision. Section 604(3) states that the
decision, and the reasons for the decision, must be expressed in plain English and be easy to
understand in structure and content. Section 601(4)(a) provides that the Commission must
publish the decision and any written reasons for the decision on its website as soon as
practicable after making the decision. Further, s 598(4) provides that the Commission has the
power to express this type of decision by order, or in any other way which is otherwise
compliant with the Act.17 Significantly, there is nothing in the Act which prevents the
Commission from expressing on a single publication a decision, any reasons for the decision as
well as other information such as headnotes, annexures containing evidence or hearing details.
Accordingly, where a publication of the Commission is titled “decision” it is not the case that
every inclusion in the publication is the “decision” for the purposes of s 604 of the Act.
[29] Against this statutory context and consistent with broader authority, the Full Court of
the Federal Court in Shop, Distributive and Allied Employees Association v Australian Industry
Group18 and Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’
Union19 considered that the Act effectively delineates between a decision and the reasons for a
decision. Relevantly, a decision is the operative exercise of a power, with legal force or effect,
and the reasons for the decision generally carry no separate legal force or effect.20 Rather,
reasons for the decision demonstrate the mental process engaged in by the decision-maker.21
Accordingly, while reasons for a decision may reveal an inference that the decision is attended
by error,22 or that orders are not properly made,23 they are generally not themselves capable of
falling within the scope of the term “decision” in s 604(1) of the Act because they do not have
legal force or effect.
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[30] In this respect, the Full Court of the Federal Court in Harmer v Oracle Corporation
Australia Pty Ltd24 stated:
“The ultimate and only point of appellate litigation is the correction of orders which
should not have been made. Although the reasons proffered for the making of an order
will ordinarily provide the basis for concluding they should not have been made, an
appellate court does not rewrite the reasons which were given, it merely instead changes
the result.”
[31] It is well established that s 739 operates in conjunction with a dispute resolution
procedure and the other empowering provisions of the Act including s 595(3), authorising the
Commission to engage in private as opposed to public, arbitration – that is, in broad terms,
arbitration by consent not coercion.25
[32] An arbitral determination is “not binding on its own force,” rather “its effect, if any,
depends on the law which operates with respect to it.”26 While the Commission cannot exercise
judicial power (being the ascertainment, declaration or enforcement of legal rights),27 an
arbitrator forms a view on the respective rights and liabilities of the parties as a matter of fact
to the extent they are empowered to do so. The operative exercise of private arbitral power
“both extinguishes the original cause of action and imposes new obligations on the parties in
substitution for the rights and liabilities which were the subject of the dispute referred to
arbitration.”28 The Full Court of the Federal Court in Airservices Australia v Civil Air
Operations Officers Association of Australia29 concluded that “an arbitrator may make binding
findings of fact falling short of doing that which he or she is not permitted to do.”
[33] Where parties agree to be bound by a decision of the Commission pursuant to a dispute
resolution clause in an enterprise agreement, and the Commission arbitrates the dispute and
issues a decision in accordance with ss 595(3) and 739(4), the binding findings of fact are those
findings which constitute the operative exercise of the Commission’s power.
[34] It follows that what constitutes a binding finding, and in turn what the “decision” is for
the purposes of the arbitral determination, is a matter of expression in the publication.
Ascertaining the “decision” may involve taking into account any relevant contextual matters,
including the procedural history of the dispute, the legislative context including that identified
above, the industrial instrument/s and any other relevant matter. Notwithstanding this, it is
fundamentally a question concerning the Commission’s intention. Where the Commission
identifies questions for determination, and provides answers to those questions in a publication,
it be open to infer that the Commission only intended for the answers to the questions to be
binding on the parties. The publication may also contain a statement of reasons, but those
aspects of the publication are, subject to the matters earlier stated, unlikely to be the “decision.”
[35] Against this background, the Commissioner’s “decision” in the application before us
was concerned with answering the three questions agreed for determination. There is no dispute
that the questions were within the scope of the Commission’s jurisdiction to answer.
[36] The structure of the Commissioner’s “decision” demonstrates that the Commissioner
approached the task by making binding findings in the exercise of answering the agreed
questions for determination. The answers given to those questions carry legal force or effect.
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We are satisfied that the Commissioner’s “decision” is therefore contained at [50] of the
decision under the heading “Conclusion” and replicated at [3] of the Decision, being the
answers to the three questions for determination.
[37] The remainder of the body of the document contains the Commissioner’s statement of
reasons, which do not bind any subsequent decision-maker and have no authoritative force in
any sense.30
[38] Contrary to the position advanced by the CPSU, by finding in the context of answering
question one that the 1996 Oncall Payments Process was a compensation mechanism for the
purposes of clause 24.4 of the Agreement, the Commissioner did not make a finding which is
binding on the parties. The finding was simply one made in the Commissioner's statement of
reasons. Should the Commissioner have intended the parties to be bound by this finding, she
may have expressed the finding in her answer to question one. However, the Commissioner did
not do so in her answer to question one or any of the three agreed questions.
[39] In these circumstances, we are satisfied that the Commissioner’s statement as to the
application of the 1996 Oncall Payments Process does not constitute the “decision” for the
purposes of s 604(1) of the Act.
Conclusion
[40] The CPSU’s grounds of appeal do not challenge the answers given by the Commissioner
to any of the questions for arbitration. Accordingly, it follows that the appeal has not been
brought against any “decision” as required by s 604(1) of the Act. Consistent with the position
of the Full Court of the Federal Court in Oracle, it cannot succeed. Moreover, in circumstances
where no challenge has been made to the operative exercise of the Commission’s power, the
appeal is inutile. Permission to appeal must therefore be refused on the basis that the appeal has
no possible practical result.31
Order and disposition
[41] For the foregoing reasons, permission to appeal is refused and the appeal is dismissed.
VICE PRESIDENT
Appearances:
Mr K. Barlow, for the Appellant.
THE FAIR WORK VOISSIN THE SEA
[2023] FWCFB 91
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Mr J. Darams of Counsel, for the Respondent.
Hearing details:
2023.
Microsoft Teams (Video).
15 February.
Printed by authority of the Commonwealth Government Printer
PR761890
1 [2022] FWC 3316.
2 AE506845; Agreement, clause 60.
3 Notice of appeal dated 9 January 2023, 3.1 at [E].
4 Appeal Book 64-65 at 2.1.
5 Decision at [42].
6 Ibid.
7 Notice of appeal dated 9 January 2023 at 2.1.
8 Appeal Book 105 at [27]
9 Decision at [3] and [50]
10 Appeal Book 105 at [27]
11 Decision at [3] and [50].
12 See, Bell v Steele [2011] FCA 1390 at [15].
13 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union (2015) 230 FCR 565; [2015] FCAFC 11
at [32].
14 Fair Work Act 2009 (Cth) s 598(1).
15 Falcon Mining Pty Ltd [2022] FWCFB 93; (2022) 317 IR 367 at [62]-[63].
16 See, Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCAFC 231
at [13].
17 Fair Work Act 2009 (Cth) Pt 5-1 Sub-Div-D.
18 (2017) 253 FCR 401; [2017] FCAFC 16.
19 (2015) 230 FCR 565; [2015] FCAFC 11.
20 Shop, Distributive and Allied Employees Association v Australian Industry Group (2017) 253 FCR 401; [2017] FCAFC 161
at [75]-[76]; Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union (2015) 230 FCR 565; [2015]
FCAFC 11 at [33]-[40].
21 See, He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 at [79].
22 Shop, Distributive and Allied Employees Association v Australian Industry Group (2017) 253 FCR 401; [2017] FCAFC 161
at [99] citing Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd
(2009) 179 FCR 323 at [51] and Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [72];
Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd (2017) 252 FCR 337 at
[30] relied on in Shop, Distributive and Allied Employees Association v Australian Industry Group (2017) 253 FCR 401;
[2017] FCAFC 161 at [76].
23 See, Harmer v Oracle Corporation Australia Pty Ltd (2013) 299 ALR 236; [2013] FCAFC 63 at [22].
24 Ibid.
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc3316.htm
[2023] FWCFB 91
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25 Construction, Forestry, Mining and Energy Union v Australian Industrial Relation Commission [2001] HCA 16; (2001) 203
CLR 645; 75 ALJR 670; 103 IR 473 at [32], CLR at 658; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal
Court of Australia (2013) 251 CLR 533; see discussion in Construction, Forestry, Maritime, Mining and Energy Union v
Falcon Mining Pty Ltd [2022] FWCFB 93; (2022) 317 IR 367 at [60]-[61].
26 Construction, Forestry, Mining and Energy Union v Australian Industrial Relation Commission [2001] HCA 16; (2001) 203
CLR 645; 75 ALJR 670; 103 IR 473 at [31], CLR at 658; see also, Finance Sector Union of Australia v GIO Australia
Limited [2003] AIRC 236 (PR928618) at [66].
27 See discussion in Police and Nurses Credit Society Ltd v FSU (2003) 132 IR 13 at [41]-[49]; CFMEU v BHP Billiton
Nickel West Pty Ltd (2017) 263 IR 67 at [18]. See also, Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union v ALS Industrial Australia Pty Ltd and Another (2015) 235 FCR 305 at [32] citing Construction,
Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 at [30]-[31].
28 TCL Air Conditioner (Zhonghan) Co Ltd v The Judges of the Federal Court of Australia (2014) 251 CLR 533; see also,
Construction, Forestry, Maritime, Mining and Energy Union v Falcon Mining Pty Ltd [2022] FWCFB 93; (2022) 317 IR
367 at [78] in agreement with Simplot v Australian Manufacturing Workers’ Union [2020] FWCFB 5054, 300 IR 1 at [22]
and citing Civil Air Operations Officers Association of Australia v Airservices Australia [2020] FCA 1665 at [63]; Energy
Australia Yallourn Limited v AMWU [2017] FCA 1245 at [64]-[67], affirmed on appeal in Energy Australia Yallourn
Limited v AMWU [2018] FCAFC 146, 264 FCR 342; Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal,
Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342; Airservices Australia v Civil Air Operations
Officers Association of Australia [2022] FCAFC 172.
29 Airservices Australia v Civil Air Operations Officers' Association of Australia [2022] FCAFC 172; 318 IR 316 at [95].
30 Groote Eylandt Mining Company Pty Ltd T/A GEMCO v Construction, Forestry, Mining and Energy Union (105N) [2016]
FWCFB 2432 at [28] and the cases cited therein.
31 Linfox Australia Pty Ltd v Australian Federated Union of Locomotive Employees [2019] FWCFB 5861 at [10]; Ferrymen
Pty Ltd v Maritime Union of Australia (2013) 238 IR 258; [2013] FWCFB 8025 at [48].
https://www.fwc.gov.au/documents/decisionssigned/html/pr928618.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5054.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb2432.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb2432.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb5861.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb8025.htm
