1 Fair Work Act 2009 s.604 - Appeal of decisions Australian Rail, Tram and Bus Industry Union v Pacific National Executive Services Pty Ltd (C2023/6907) VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON SYDNEY, 5 FEBRUARY 2024 Appeal against decision [2023] FWC 2771 of Deputy President Cross at Sydney on 1 November 2023 in matter number C2023/6403 – permission to appeal refused. [1] The Australian Rail, Tram and Bus Industry Union (the RTBU or Appellant) has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Cross on 1 November 2023 (Decision)1 in which the Deputy President dismissed the RTBU’s application for an order pursuant to s.418 of the Fair Work Act 2009 (FW Act). The RTBU contends that the Deputy President erroneously found that action taken by the respondent, Pacific National Executive Services Pty Ltd (Pacific National or Respondent) was employer response action within the meaning of s.411 of the FW Act. [2] For the reasons that follow, permission to appeal is refused and the appeal is dismissed. Background [3] On 12 October 2023, the RTBU notified Pacific National of protected action in the form of employee claim action. The notice relevantly stated: Nature of action: Stoppage of work in the form of 288 consecutive 15 minute stoppages. Day on which action commences: 0001hrs on 18 October 2023 until 0001hrs on 21 October 2023. [4] On 17 October 2023, Pacific National issued a notice to all its employees which relevantly stated: Pacific National hereby gives notice that if any employee engages in The Stoppage, in response, Pacific National will be engaging in Employer Response Action, commencing at 0001 hrs on Wednesday 18 October 2023 and concluding at 0001hrs on Wednesday 25 October 2023 (Period). [2024] FWCFB 46 DECISION [2024] FWCFB 46 2 During that Period, each employee who engages in The Stoppage will not be permitted to perform any work (that is, the employee will be “locked out”). If this applies to you, you should not attend your place of work, and you will not be paid for the Period. [5] A lock out of employees in accordance with the Pacific National notice commenced on 18 October 2023 and continued until the end of the first minute of 25 October 2023. [6] On 23 October 2023, the sixth day of the lock out, the RTBU made an application to the Commission pursuant to s.418 of the FW Act for an order to stop unprotected industrial action, in the form of a lock out, undertaken by the Respondent. The application was listed at 3.00 pm on 23 October 2023. It was adjourned by consent for hearing at 4.00 pm on 24 October 2023. The hearing on 24 October 2023 concluded at 5.20 pm. The lockout was due to cease at a minute past midnight that evening. [7] In the proceedings before the Deputy President, the RTBU contended that the lockout was pre-emptive and not employer response action within the meaning of s.411(1)(a) of the FW Act. The RTBU relied upon the terms of s.411 and the decision of the Full Bench of this Commission in AMWU v McCain Food.2 The Full Bench in McCain found that a lockout by an employer occurring before employees have taken any industrial action is not protected industrial action. [8] In McCain, as is the case here, the lockout had ended by the time the appeal was heard. The Full Bench granted permission to appeal because the appeal raised an important question concerning the construction and practical operation of s.411 of the FW Act, which was likely to arise again in the future, and because the decision being appealed was at odds with previous single-member decisions of the Commission that had held a lockout by an employer occurring before employees have taken industrial action is not protected industrial action. [9] In the proceedings at first instance, Pacific National did not cavil with the notion that the lockout could not be protected if it was pre-emptive. Rather, the Respondent contended that, properly construed, its notice of industrial action was responsive to the action taken by employees and was not pre-emptive. Pacific National argued that its notice was in response to the stoppages that were to occur in accordance with the RTBU notice. It was said that under the Pacific National notice, employees were only locked out if they intended to engage in industrial action in accordance with the RTBU’s notice. [10] In his consideration, the Deputy President turns first to the RTBU notice and construed it to specify a single 72-hour stoppage. The Decision then turns to the Pacific National lock out notice. The Deputy President found that the lock out notice was in clear terms in stating the lock out was in response to employees engaging in industrial action. The Decision then refers to Pacific National’s evidence that it went to considerable lengths to ascertain whether individual employees were going to be absent in accordance with the RTBU notice. The Decision concludes that the lockout action was employer response action because it did not commence before the industrial action to which it was responding, as Pacific National took care to confirm whether employees were intending to take the action before confirming it would lock the employees out. [11] Pacific National also contended before the Deputy President that while the industrial action was happening at the time of the hearing it would not continue, nor was there evidence [2024] FWCFB 46 3 to meet the requirements in s.418 that further action was threatened, impending or probable or was being organised. The Decision notes that the action the subject of the application had ceased and so there was no longer industrial action happening, threatened, impending or probable, or being organised. Permission to appeal [12] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.3 There is no right to appeal. An appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds. [13] The public interest test is a discretionary one involving a broad value judgment.4 The public interest is not satisfied simply by the identification of error,5 or a preference for a different result.6 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 they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”7 [14] 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.8 An error in the decision at first instance is not necessarily a sufficient basis for the grant of permission to appeal.9 Permission to appeal will generally not be granted where an appeal could serve no practical purpose.10 This principle has been applied in appeals from decisions concerned with the circumstances of protected industrial action.11 Consideration [15] The RTBU’s single point on appeal is the same as its primary argument before the Deputy President: the lock out was not responsive to employee claim action and so was not protected action. It contends that permission to appeal should be granted because the appeal raises a question of importance and general application relating to the notice requirements for employer response action, has potential to impact the rights of the employees who were stood down to wages, and is affected by error which should, in the public interest, be addressed. [16] Pacific National contends permission to appeal should be refused as the appeal does not attract the public interest or otherwise warrant permission. It submits that the matter at first instance has no broader application as it was decided on its particular facts. It disputes that the Decision is affected by error. It also contends that there is no utility in the appeal because industrial action is not happening, threatened, impending, or probable, nor is it being organised. [17] Permission to appeal may be granted where an appeal raises an important question concerning the construction and practical operation of a provision of the FW Act that is likely [2024] FWCFB 46 4 to arise again in the future and needs clarification. However, we do not consider such a question arises here. We agree with Pacific National that the Deputy President’s finding that the action was response action turned on the particular facts of the case. The broader question the RTBU seeks to agitate on appeal— the need for employer response action to be responsive to employee claim action— does not need clarification as it has been considered and clarified by the Full Bench in McCain. There is no need for us to revisit what was said in that decision. Consequently, we reject this aspect of the RTBU’s request for permission to appeal. [18] The second matter upon which the RTBU seeks permission to appeal is its contention that the underlying question raised by its appeal has significant financial consequences for the parties. That question being whether the lock out was lawful and relatedly, if it was not, whether they are entitled to wages for the period of an unprotected lock out. [19] The question of whether the employees are entitled to wages during the period of the lock out is not a matter for the Commission in these proceedings. The Commission’s role in this appeal is first to determine whether permission to appeal should be granted, and, if so, whether to make an order rectifying the first instance decision. The decision under appeal was made under s.418 of the FW Act. That section requires the Commission to determine whether it must make an order that industrial action stop, not occur, or not be organised. In that context, the Commission, either at first instance or on appeal, has no jurisdiction to determine the legal rights of employees who may have been stood down unlawfully. So much has been made clear by courts a number of times. In the High Court in R v Gough; Ex parte Key Meats Pty Ltd,12 Gibbs CJ stated the Commission has no jurisdiction to determine the legal rights of employees who have been stood down.13 In Esso Australia Pty Ltd v Australian Workers' Union,14 the Full Court pointed out that while the Commission’s assessment about whether industrial action is happening, threatened, impending or probable, or is being organised is, or would be, protected industrial action is an important preliminary step in the exercise of the power under s.418, that assessment cannot be legally conclusive.15 [20] As to the RTBU’s assertion that the Decision is affected by error that should be corrected on appeal, while we have some doubts about the Decision, we do not believe there is cause for appellate intervention. It appears that the Deputy President focussed on the intention of Pacific National that its lock out be responsive to the employees’ intended industrial action, rather than focussing on whether the lock out actually was responsive to action taken by employees. As the lock out commenced at the same time that the employees’ action was due to commence, we do not see how it could be responsive to that action. The employees were unable to commence industrial action due to the lock out. The Deputy President’s approach is a departure from the approach taken by the Full Bench in McCain. [21] However, we are of the view that if there is error, it arises from the peculiar circumstances related to the case, including the ambiguous nature of the RTBU’s notice of employee claim action and the proper construction of Pacific National’s notice of employer response action. As these are considerations arising from the facts in this matter alone, they do not have application beyond this case and do not warrant permission to appeal. [22] Further, as the Deputy President noted, Pacific National’s lock out, the subject of the application for an order under s.418 before him, had ceased. Accordingly, even if permission to appeal were to be granted and the appeal upheld, the RTBU’s application for an order would [2024] FWCFB 46 5 be dismissed because the precondition in s.418(1) that there be unprotected industrial action happening, threatened, impending or probable, or being organised could not be satisfied. [23] For these reasons, we have decided that permission to appeal should be refused. We so order. VICE PRESIDENT Matter determined on the papers. Final written submissions: 27 November 2023, for the Appellant. 11 December 2023, for the Respondent. 21 December 2023, for the Appellant in reply. Printed by authority of the Commonwealth Government Printer <PR770978> 1 [2023] FWC 2771. 2 [2021] FWCFB 4808 (McCain). 3 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ. 4 O’Sullivan v Farrer (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 at [44] – [46]. 5 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]. 6 Ibid 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) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]. 7 (2010) 197 IR 266 at [27]. 8 Wan v AIRC (2001) 116 FCR 481 at [30]. 9 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]; United Firefighters' Union of Australia, Union of Employees, Queensland Fire Brigade Employees' Union of New South Wales v United Firefighters' Union of Australia [2023] FWCFB 261 at [18]. 10 See e.g. Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia [2013] FWCFB 4250 at [14]; Ferrymen Pty Ltd [2013] FWCFB 8025, 238 IR 258 at [48]; at [28]; New South Wales Bar Association v McAuliffe [2014] FWCFB [2024] FWCFB 46 6 1663, 241 IR 177 at [28]; Appeal by KCL Industries Pty Ltd [2016] FWCFB 3048, 257 IR 266 at [8]. Maritime Union of Australia v Harbour City Ferries [2014] FWCFB 3858 at [28]; Linfox Australia Pty Ltd v Australian Federated Union of Locomotive Employees [2019] FWCFB 5861 at [10]. 11 Maritime Union of Australia v Harbour City Ferries [2014] FWCFB 3858 at [28]; Linfox Australia Pty Ltd v Australian Federated Union of Locomotive Employees [2019] FWCFB 5861 at [10]. 12 (1982) 148 CLR 582. 13 Ibid at 587. 14 [2016] FCAFC 72; 245 FCR 39. 15 per Buchanan J at [27], Siopis J agreeing at [1].