DECISION

Fair Work Act 2009
s.604—Appeal of decision

Sinisa Krstic
v
Electricity Networks Corporation T/A Western Power
(C2020/4583)

Appeal against decision [2020] FWC 582 of Deputy President Binet at Perth on 26 May 2020 in matter number C2019/7689.

Overview

[1] Mr Sinisa Krstic (Appellant) lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a Decision 1 and Order2 of Deputy President Binet issued on 26 May 2020. The Decision dealt with an application filed by Electricity Networks Corporation (Respondent) to vary redundancy pay pursuant to s 120. The Deputy President concluded that a position offered to the Appellant was acceptable employment under s 120 of the Act and that it was appropriate to grant the order sought and reduce the Appellant’s redundancy pay to nil.

[2] Both parties consented to having the matter determined on the papers and it appears to us that the appeal can be adequately so determined. The Respondent sought permission to be legally represented. It was unnecessary for the Full Bench to grant such permission to be represented by a lawyer, as permission is not required in a case where there is no hearing and the matter is to be determined on the written submissions filed. 3

[3] The written submissions filed by each party addressed both permission to appeal and the merits of the appeal.

[4] By way of background in a separate proceeding, the Appellant applied under s 739 of the Act for the Commission to deal with a dispute in accordance with the disputes settlement term of the Western Power and Australian Services Union Enterprise Agreement 2017 (Agreement). The Agreement made provision for redundancy in clause 23. An entitlement to redundancy payment arises under the Agreement if an employee’s role becomes redundant and there is no alternative position for the employee. The Appellant’s position had become redundant and he was being offered the position of Senior Property Specialist. The dispute concerned whether on a proper construction of the Agreement the refence to “alternative role” in clause 23(b)(ii) of the Agreement carried with it an additional requirement that the alternative role be “suitable”; and if so, whether the position of Senior Property Specialist was “suitable”. The dispute was dealt with by Deputy President Beaumont, who determined there was no additional requirement that the “alternative role” be suitable. 4 Though it was not necessary for her to so do, Deputy President Beaumont also determined that the position of Senior Property Specialist was “suitable”.5

The Decision under appeal

[5] The factual matrix is summarised by the Deputy President from [10] in the Decision. In short, the following was outlined:

•  The Appellant commenced working with the Respondent from 18 October 2010. The Appellant was provided with a permanent role as Property Team Leader on 22 November 2016. A restructure took place in June 2019 resulting in, amongst other things, two employees who had previously reported to the Appellant being allocated to different teams. The Appellant initiated a grievance process in relation to the restructure process.

•  The Appellant’s previous role of Property Team Leader was made redundant and the Appellant was offered a new role as Senior Property Specialist. The Appellant was informed that he was not entitled to severance pay, as the Respondent had offered the Appellant the Senior Property Specialist position. On 16 August 2019, the Appellant, with his union representative, met with several employees of the Respondent to discuss the Appellant’s grievance and clarification was provided in relation to the nature of the Senior Property Specialist role.

•  The Appellant’s employment was terminated effective 3 December 2019. The Appellant was paid all relevant accrued entitlements except for redundancy pay pending the determination of the application before the Deputy President.

[6] In determining whether she was empowered to grant the order sought by the Respondent, the Deputy President was first tasked with determining whether under s 120(1)(b) of the Act, the Respondent obtained other acceptable employment for the Appellant.

[7] The Deputy President concluded that the position offered to the Appellant was ‘obtained’ by the Respondent for the purposes of s 120(1)(b)(i) of the Act. The Deputy President then considered whether the new role offered to the Appellant was ‘acceptable employment’.

[8] The Deputy President considered the evidence comparing the Appellant’s previous role to the new role. In respect of assessing the nature of the new role, the Deputy President considered the information contained in the job description provided to the Appellant on 26 June 2019, in addition to the information provided at the 16 August 2019 meeting, as documented by the Appellant’s union representative and the Respondent.

[9] The Deputy President noted that the position descriptions of the Property Team Leader role and the Senior Property Specialist role differed in respect of references to leadership skills and supervisory responsibilities. However, the Deputy President noted that the ‘balance’ of the duties in the new role relate to skills ‘…of the same or similar nature to the new role’ 6. The Deputy President concluded that, when considering the evidence ‘…in its totality…the new role contemplated the performance of work of a similar, albeit not identical nature.’7

[10] The Deputy President ultimately accepted that the new role would have provided the Appellant with significant advantages, including the opportunity to acquire relevant experience, routine interaction with senior management and increased levels of senior responsibility. 8

[11] In considering the meaning of ‘other acceptable employment’ in s 120(1)(b)(i) of the Act, the Deputy President stated at [94]:

“[94] The fact that the proposed role was not ‘acceptable’ to Mr Krstic nor that it was not identical to his previous role does not make the proposed role not ‘acceptable’ for the purposes of section 120 of the FW Act.”

[12] In relation to the contention that the new role was not objectively acceptable because of the removal of the Appellant’s supervisory responsibilities, the Deputy President at [99]-[100] stated:

“[99] Supervisory duties are only one of eleven key duties identified in the Property Team Leader position description. I am not satisfied that Mr Krstic’s supervisory functions dominated his daily work to the extent which he suggests or in a way that makes the new role so alien to his existing role that the new role is not objectively acceptable. It appears that performing technical tasks formed a significant portion of his duties as Property Team Leader. The new role contemplated him performing technical tasks of the same or more complex nature for the same employer at the same location during the same hours of work for the same pay in a role assessed at a higher Pay Point and Hay Evaluation. His career trajectory as Mr Boot’s heir apparent appeared to be undisturbed by the transfer between workstreams. Given Mr Krstic’s assertion that he received limited leadership training in his pre existing role I am not satisfied that the new role could reasonably be considered as unacceptable based on a reduction in training opportunities.

[100] … Regrettably it appears he did not objectively assess the new role as a whole. Having commenced a grievance process to ventilate his concerns unfortunately he did not engage in a meaningful way with his employer to give proper consideration to information they sought to provide to him to address those concerns.”

[13] The Deputy President concluded that the position offered to the Appellant was acceptable employment and was satisfied that it was appropriate to grant the order sought and reduce his redundancy pay to nil.
Consideration

[14] The Appellant raised a number of matters said to give rise to appealable error which we have endeavoured to distil in eleven identifiable grounds of appeal. It is appropriate to first consider appeal grounds two, four and five, which in essence contend that the Deputy President fell into error by relying on a series of mistaken facts.

Grounds 2 and 4

[15] By grounds two and four of the appeal 9 the Appellant contends that the Deputy President relied on the mistaken fact that the new role had the same day to day tasks as the original role. The Appellant contended that by having regard to the written text contained within the position descriptions of the former role and the new role, it is clear that the roles “were of a different nature and that seniority [in the new role] was significantly diminished”.10 The Appellant also contends that the Deputy President erred by relying on evidence given by Mr Boots who was the Appellant’s manager because Mr Boots’ use of the word “tasks” was a misnomer for “purposes”. The Appellant contends that the “tasks” listed by the Deputy President [22] of the Decision were the purposes of the property team and not the tasks for the proposed role. The Appellant says further that the Deputy President erroneously took into account information about the new role provided by Mr Boots at a meeting initiated by the Appellant on 16 August 2019 to assess the two roles. The Appellant submitted that, in fact, his submission was that the information provided in this meeting should not have been considered because there was an onus on the Respondent to provide relevant information during the restructure consultation in writing.

[16] Dealing with this last matter first, we do not accept that by relying on Mr Boots’ evidence about the meeting on 16 August 2019, during which he stated that the new role involved the same ‘day to day tasks’ as the former role, the Deputy President erred. It was open to the Deputy President to have regard to this evidence, which was never properly challenged. 11

[17] This aspect of this ground of appeal in substance reagitates matters which were considered by the Deputy President. We agree with the Deputy President’s conclusion that:

“[53] … While the information provided at the 16 August 2019 meeting was given verbally the meeting was documented by both Western Power and Mr Krstic’s union representative. There is no evidence to suggest that Western Power would have refused to confirm the information in writing had Mr Krstic requested some other form of record of discussion.”

[18] The Deputy President dealt with the Appellant’s submission regarding an ostensible legal obligation on the part of the Respondent to provide relevant details in writing at [52]-[53] in the Decision, and we see no error in her conclusion. The evidence was relevant notwithstanding that the meeting occurred as part of the grievance process initiated by the Appellant. It was appropriate for the Deputy President to have regard to the additional information provided to the Appellant about the new role at the 16 August 2019 meeting. Such weight as should be given to the evidence was a matter for the Deputy President.

[19] In any event, even if the Deputy President had confined her inquiry to the position descriptions of both roles, we would not disturb her conclusion. Having closely perused the position descriptions of both roles, we would agree with the Deputy President that, aside from the lack of supervisory duties in the new role, the balance of the duties in the former role relate to skills of a similar nature to the new role.

[20] Furthermore, the Appellant submits that the witness statement of Mr Boots affirms his position, as Mr Boots stated that the new role entailed reviewing and signing business cases; a task that was carried out by the Appellant’s subordinates in his former role. The Appellant also submitted that this fact was not refuted by the Respondent. That this fact was not expressly refuted by the Respondent is immaterial. The real issue before the Deputy President was whether the new role constituted ‘acceptable employment’ under s 120 of the Act. As the Deputy President made reference in [88] of the Decision, the authorities make clear that, inter alia ‘acceptable employment’ does not mean identical employment. 12 The Appellant’s submission is premised on the erroneous view that in not having identical tasks in his new role to that of his former role, the employment obtained by the Respondent was not ‘acceptable’.

[21] The Deputy President was required to objectively assess whether the new role was acceptable employment. The position descriptions of the old and new roles and Mr Boots’ evidence about the duties of the new role were relevant matters in making that objective assessment. The Deputy President observed that the supervisor functions of the old role are not contained in the new role but that is only one factor relevant to the assessment. The Appellant’s contention about the reduction in seniority must be assessed in the context of the former role which is said to be more senior, having been removed. The relative seniority of the new role is also to be assessed by the largely similar work undertaken, the higher pay point and the higher qualification requirements and appointment criteria of that role. 13 We are not persuaded that any of the matters raised by the Appellant under this head of appeal establish appealable error. Accordingly, appeal grounds two and four would fail.

Ground 5

[22] The Appellant’s fifth ground of appeal 14 contends that at [87] of the Decision, the Deputy President incorrectly stated that the Appellant asserted he would receive less training in the new role, when his contention was that he would receive less leadership training in the new role. For completeness, we have extracted paragraph [87] in the Decision below:

“[87] In the course of endeavouring to cast doubt on the credibility of Mr Boots evidence that the new role would lead to improved training opportunities Mr Krstic unhelpfully extracted from Mr Boots in cross examination evidence that training opportunities Mr Krstic had sought in his current role had not eventuated. In light of this evidence it is difficult to accept Mr Krstic’s assertion that he would receive less training in the new role.” [Endnotes omitted]

[23] It is apparent from the endnotes of paragraph [87] that the issue of leadership training was contemplated by the Deputy President in her analysis of training in the new role. For instance, the endnotes demonstrate the Deputy President’s consideration of, inter alia, the witness statement of Mr Boots which canvassed the issue of future leadership training. In any event, we would not disturb the Deputy President’s conclusion, having regard to the Appellant’s union representative’s email summary of the 16 August 2019 meeting which expressly noted that Mr Boots “was supportive of Sinisa undertaking leadership training.” 15

[24] That the Deputy President did not deal with the Appellant’s assertion that insufficient funds in the annual discretionary training budget would preclude the Appellant from receiving leadership training, is immaterial. It was no more than an assertion and stands in contradistinction to the sworn evidence of Mr Boots about this issue. Therefore, appeal ground five would fail.

Ground 1

[25] In the first ground of appeal, 16 the Appellant impugns the Deputy President’s findings at [9] in the Decision, which for completeness is extracted below:

“[9] Final written submissions were filed on behalf of Western Power on 1 April 2020. Final written submissions were filed by Mr Krstic on 14 April 2020. I note that Mr Krstic advanced some additional arguments in his written closing submissions which were not raised in his written opening submissions or orally at the Hearing. I did not invite the Applicant to respond because the submissions have not altered my final decision and/or were not relevant to the issues I was required to determine in this Application.” [emphasis added]

[26] The Appellant contends that by failing to take into account the Appellant’s “counter evidence” as summarised in his final written submissions, the Deputy President failed to take into account a material consideration. 17 Further, it is contended by the Appellant that such submissions “…were directly relevant to the issues of the application…” and were “…rebuttals to the arguments presented by [the Respondent].”18

[27] On a fair reading of the Decision, we are not persuaded that the Deputy President did not consider the Appellant’s written submissions. Clearly, the Deputy President had regard to such materials. As to the weight she ascribed to the “additional arguments”, the Deputy President concluded that it did not alter her view, or the material was not relevant to the issues requiring determination. No appealable error is disclosed. Accordingly, appeal ground one would fail.

Ground 3

[28] The Appellant contends 19 that the Deputy President erred by mistaking the facts at [21] in the Decision in noting that after November 2016 “two Property Specialists reported to [the Appellant]”. The Appellant is correct to note that, there was in fact one Senior Property Specialist and one Property Specialist who reported to the Appellant in his former role. The Respondent accepts that the Deputy President incorrectly designated one of the Appellant’s former subordinates, but we consider the error to be inconsequential. The error is not a material mistake of fact in the sense that it would raise doubt as to the ultimate conclusion and so does not give rise to appealable error. Accordingly, appeal ground three would fail.

[29] Grounds six to nine of the appeal 20 allege that the Deputy President’s failure to have regard to the Appellant’s closing submissions and the ‘counter evidence’ led her to being guided by irrelevant factors.

Ground 6

[30] The Appellant contends that in relation to the new role attracting a higher pay point, a comparison of pay points between both roles cannot be made as the Appellant in his former role was paid in a way not governed by the Agreement pay points as he had entered into an individual flexibility arrangement. 21 Furthermore, the Appellant submits that the Deputy President’s reliance on the new role being of a more complex nature was irrelevant as his closing submissions established, inter alia, that his former role involved dealing with more complex transactional work.22

[31] We agree with the Respondent’s submission that the Appellant did not challenge any of the relevant evidence in cross examination, including evidence that the new role attracted a higher pay point and involved additional complexity. 23 Indeed as a matter of fact, that the new role was at a higher pay point is correct. That a different arrangement pertained under the individual flexibility arrangement does not alter that fact. Moreover, there is no evidence that suggests the Appellant would have been precluded from making a new individual flexibility arrangement pertaining to the new role. That the Deputy President did not expressly refer to the Appellant’s ‘counter evidence’ contained in his closing submissions is of no moment – there is no obligation on the part of a decision-maker to summarise all submissions a party makes in making a decision. It is evident from the Decision that the Deputy President weighed up the evidence and assessed that, having regard to the nature of the work to be performed in the new role and it being assessed at a higher pay point, it constituted ‘acceptable’ employment under s 120 of the Act. That the new role was at a higher pay point, that it would involve more complex transactions and that this evidence was not challenged in cross-examination were all matters relevant in the assessment made. We see no appealable error in the Deputy President’s approach. Accordingly, appeal ground six would fail.

Ground 7

[32] The gravamen of the Appellant’s seventh ground of appeal 24 is that the Deputy President was misguided in the significance that she attributed to workstreams. Inter alia, the Appellant contends that the senior positions are held in the Formal Leader workstream. Further, the Appellant contends that the process of having to engage in a competitive recruitment process for an advertised role meant that the Deputy President’s observations at [84] about transferring back to the Formal Leadership stream at a later date, were incorrect.

[33] Relevantly, the Deputy President found that:

•  Each workstream provided an opportunity for career progression; 25

•  A career in the Professional Other workstream may have in fact provided the Appellant with a higher career trajectory than remaining in the Formal Leadership workstream, considering the higher pay point in the new role; 26

•  There was no evidence to suggest that transferring out of the Formal Leadership workstream would have prevented the Appellant from subsequently transferring back at a later date; 27

•  The evidence was that in his former role and in the new role, the Appellant’s career path would have been a promotion into the role occupied by Mr Boots, a role that fell within the Leadership stream. 28

[34] The Respondent submits that in effect, the Appellant is contending that the Deputy President ought to have yielded to the Appellant’s submissions (as opposed to the evidence). 29 We accept this submission, insofar as the unchallenged evidence was that no particular workstream was accorded preference when compared to any workstream and that the Appellant’s change in workstream would not have impacted his career progression. The Deputy President was not misguided. This was a matter relevant to the assessment the Deputy President was required to make and in doing so she accorded the matter some weight. No appealable error is disclosed.

[35] Accordingly, appeal ground seven would fail.

Ground 8

[36] The Appellant’s eighth ground of appeal 30 contends that the Deputy President was misguided by the Respondent’s claims that there was no material disadvantage to the Appellant’s promotional prospects. The Appellant’s contention overlooks the evidence that was considered by the Deputy President, including evidence that the new role would enhance his prospects for promotion to a more senior leadership role and provide opportunities to engage in more complex work. The Appellant’s concerns about applying for managerial positions external to the Respondent, which is a subjective concern, is of no particular weight for the purposes of making the assessment required by s 120 and in any event lack substance given the aforementioned evidence considered by the Deputy President. The Appellant’s submission does not identify any error in the Deputy President’s approach. Therefore, appeal ground eight would fail.

Ground 9

[37] The ninth ground of appeal 31 concerns the Deputy President’s observation at [76] regarding the removal of the Appellant’s delegated financial authority in 2017. The Appellant contends, inter alia that no instructions were given to remove this authority and in any event, he was exercising his authority after 30 May 2017. We accept the Respondent’s submission that, even if it was established that the Appellant’s delegated financial authority had been removed, this on its own would not have rendered the new role inferior. The Deputy President at [79] in the Decision acknowledged that the evidence surrounding the actual delegated authority the Appellant had in his former role was inconclusive, but nevertheless was not satisfied that the absence of such authority in the new role of itself makes the new role inferior.32

[38] Overall, we are unable to see how the Appellant’s ninth ground of appeal demonstrates appealable error in respect of the Deputy President’s findings or method of comparing both roles. Accordingly, appeal ground nine would fail.

[39] The tenth to eleventh grounds of appeal 33 were raised in the context of matters relevant to whether it would be in the public interest for the Commission to grant permission to appeal.

Ground 10

[40] The tenth ground of appeal 34 asserts that the Deputy President in proceedings35 applied legal principles disharmonious to analogous decisions, by referring to subjective evidence as to what might have happened in the future. For completeness we extract the impugned statement made by the Deputy President in the proceedings below:

“THE DEPUTY PRESIDENT: And there's lots of different criteria that the authorities have taken into account, and as you say no one single matter is conclusive, but it's the overall assessment, and some of that will go to people's subjective evidence about what might have happened in the future, okay.” 36

[41] We see no error in the Deputy President’s statement and we accept the Respondent’s submission that it does not amount to a factual finding in the Decision. The statement does not form part of the Deputy President’s reasons for decision. It merely gives notice that the Deputy President will, amongst other matters, give consideration to viewpoints concerning the likelihood of certain events occurring, or ‘subjective evidence’, to the extent that these are relevant and assist part of an assessment of whether or not a role constitutes ‘other acceptable employment’ under s 120 of the Act. The statement, made in the course of the hearing, and to which the Appellant had full opportunity to respond, does not give rise to appealable error. Therefore ground ten of the appeal would fail.

Ground 11

[42] In substance, the Appellant’s eleventh ground of appeal 37 was that the Deputy President erred by downplaying the significance of the duties listed in the position description of the new role, as evidenced by her statements at [69] of the Decision:

“[69] Clearly the position descriptions are intended to provide a ‘flavour’ of the role rather than to codify all the tasks and duties. Evidence of those tasked with drafting the position description and/or directing the work of the incumbent in the position is relevant to the interpretation of the intent of the language used in the position descriptions. Consideration must also be given to evidence as to what duties in practise Mr Krstic performed which were not fully captured in his position description and what duties Western Power contemplated him performing in the new role which were not fully captured in the new position description.”

[43] We are unable to accept the contention that the Deputy President did not properly consider the significance of the position description of the new role. As is apparent from the Decision, 38 the Deputy President gave detailed consideration to the position descriptions of both roles. As stated earlier, it was open to the Deputy President to have regard to the position descriptions of both roles, in conjunction with other evidence including the duties that the Appellant performed in practice. No appealable error is disclosed. Appeal ground 11 would fail.

Should permission to appeal be granted?

[44] 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. 39 There is no right to appeal and an appeal may be made only with the permission of the Commission.

[45] 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. 40 The public interest is not satisfied simply by the identification of error, or a preference for a different result.41 In GlaxoSmithKline Australia Pty Ltd v Makin42 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.” 43

[46] 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. 44 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[47] The Appellant contended that by dismissing the significance of his supervisory responsibilities in his former role, the Decision is disharmonious when compared with other relevant decisions. 45 It is apparent that numerous cases cited by the Appellant in his notice of appeal and submissions were cases cited in submissions filed before the Deputy President. Relevantly, the Deputy President considered them in paragraph [97] of the Decision:

“[97] In his submissions Mr Krstic cited a number of decisions in which the FWC determined that an alternative position was not ‘acceptable’ because the employee’s seniority had been reduced. In almost all of those cases the decrease in supervisory responsibilities was accompanied by significant decreases in renumeration or capacity to earn renumeration and can be differentiated on that basis.” 46

[48] To this extent, we would observe that the following cases cited: Re Mantra Hospitality (Admin) Pty Ltd [2013] FWC 1063, Children’s Services Support Unit (CSSU) Inc [2014] FWC 7503 and Re Stabler & Howlett Veterinary Surgeons Pty Ltd [2019] FWC 1208 are distinguishable on the basis that the Appellant would have been recipient to the same pay in his new role compared to his former role.

[49] In any event, each case turns on its own facts, and the weight that a Member assigns each factor that is relevant depends on the circumstances of the case. The absence of supervisory functions may in one case be decisive, but in another may bear little weight in the assessment made. These are judgments to be made by the Member at first instance. Absent appealable error, these judgments are not to be second guessed on appeal. We see no substance in the Appellant’s submissions that the Deputy President dismissed the significance of his supervisory responsibilities. We have earlier addressed the substance of this submission under another head of appeal. The legal principles applied by the Deputy President are not in any respect disharmonious with recent decisions of the Commission that consider the application of s 120 of the Act.

[50] The Appellant submits that the Decision created a result which is counter intuitive. 47 This submission also recasts his second ground of appeal. We do not accept this proposition, for reasons earlier given.

[51] The Appellant submits that the Decision raises issues of importance and general application because, in essence, the Deputy President failed to have regard to objective evidence, and rather relied on ‘opinions and unsubstantiated views’. 48 The principles to be applied in cases such as this are well settled. The Deputy President applied herself to the correct questions, made an assessment of the evidence before her and reached the conclusion she did. As we have already indicated, it was open on the evidence for the Deputy President to conclude that the new role was ‘acceptable employment’ within the meaning of s 120 of the Act. That the Appellant is unhappy with that result or that we might come to a different conclusion is not reason enough to grant permission to appeal.

[52] The grant of permission to appeal would not be in the public interest. We are not satisfied that:

•  there is a diversity of decisions at first instance for which guidance from a Full Bench is required;

•  the appeal raises issues of importance and/or general application;

•  the Decision manifests an injustice, or the result is counter-intuitive; or

•  the legal principles applied by the Deputy President were disharmonious when compared with other Commission decisions dealing with similar matters.

[53] We are also not persuaded there are any other discretionary reasons why permission to appeal should be granted.

Conclusion

[54] For the reasons set out above, we are not satisfied, for the purpose of s 604(2) of the Act, that it would be in the public interest to grant permission to appeal. We are not persuaded that there is any other basis upon which permission should as a matter of discretion be granted. But even if we were minded to grant permission to appeal, we would for the reasons stated, dismiss the appeal.

[55] Permission to appeal is refused.

VICE PRESIDENT

Final written submissions:

Appellant’s submissions dated 16 July 2020 and reply submissions dated 13 August 2020
Respondent’s submissions dated 6 August 2020

Printed by authority of the Commonwealth Government Printer

<PR723192>

 1   Electricity Networks Corporation T/A Western Power [2020] FWC 582 (the Decision).

 2   PR716416 (Order).

 3   Fair Work Commission Rules 2013, rule 12.

 4   Sinisa Krstic v Electricity Networks Corporation t/a Western Power [2019] FWC 7962 at [61].

 5   Ibid at [68].

 6   Decision at [68].

 7   Decision at [70].

 8   Decision at [92].

 9   Paragraphs 3 and 5 of the document titled “What are the grounds for your appeal?” attached to the F7 Notice of Appeal.

 10   F7 Notice of Appeal, paragraph 3.

 11   See inter alia, Decision [37] wherein the Appellant’s union representative stated: “Effectively, in the new position Sinisa will be undertaking virtually the same work but in a position classified a level higher than his redundant position.”

 12   Spotless Services Australia Limited T/A Alliance Catering [2016] FWC 4505 at [65].

 13   See Appeal Book pp 61, 106-107 and 186-187; PN251-PN253, PN505-PN513 and PN682-PN688.

 14   Paragraphs 6 of the document titled “What are the grounds for your appeal?” attached to the F7 Notice of Appeal.

 15   Appeal Book, p 769.

 16   Paragraph 2 of the document titled “What are the grounds for your appeal?” attached to the F7 Notice of Appeal.

 17   Ibid at paragraph 1.

 18   Ibid at paragraph 1-2.

 19   Ibid at paragraph 4.

 20   Ibid at paragraphs 7 to 12.

 21   Ibid at paragraph 8.

 22   Ibid at paragraph 9.

 23   Respondent’s submissions at [27].

 24   Paragraph 10 of the document titled “What are the grounds for your appeal?” attached to the F7 Notice of Appeal.

 25   Decision at [83].

 26   Decision at [83].

 27   Decision at [84].

 28   Decision at [84].

 29   Respondent’s submissions at [28].

 30   Paragraph 11 of the document titled “What are the grounds for your appeal?” attached to the F7 Notice of Appeal.

 31   Ibid at paragraph 12.

 32   Decision at [79].

 33   Document titled “3.1 Set out the matters that you believe make it in the public interest for the Commission to grant permission for the appeal” attached to the F7 Notice of Appeal.

 34   Ibid at paragraph 2.

 35   PN743.

 36   Ibid.

 37   Paragraph 3 of the document titled “3.1 Set out the matters that you believe make it in the public interest for the Commission to grant permission for the appeal” attached to the F7 Notice of Appeal.

 38   See inter alia [68].

 39   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 40   O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 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; (2011) 207 IR 177 at [44]-[46].

 41   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

 42   [2010] FWAFB 5343.

 43   Ibid at [27].

 44   Wan v AIRC (2001) 116 FCR 481 at [30].

 45   Paragraphs 4-5 of the document titled “3.1 Set out the matters that you believe make it in the public interest for the Commission to grant permission for the appeal” attached to the F7 Notice of Appeal.

 46   Decision at [97].

 47   Paragraph 6-7 of the document titled “3.1 Set out the matters that you believe make it in the public interest for the Commission to grant permission for the appeal” attached to the F7 Notice of Appeal.

 48   Ibid at paragraph 8-12.