DECISION

Fair Work Act 2009
s.604—Appeal of decision

Derbarl Yerrigan Health Service Inc.
(C2018/1383)

Appeal against decision ([2017] FWCA 180) of Commissioner Gregory at Melbourne on 11 January 2017 in matter number AG2016/6758.

[1] Derbarl Yerrigan Health Service Inc. (the Appellant) has lodged an appeal, pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act), for which permission is required, against a decision of Commissioner Gregory issued on 11 January 2017 1 (Decision) in which he approved the Derbarl Yerrigan Health Services Enterprise Agreement 2016 (the Agreement).

[2] The Decision was as follows:

“[1] An application has been made for approval of an enterprise agreement known as the Derbarl Yerrigan Health Services Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Derbarl Yerrigan Health Service Inc.. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial change to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 January 2017. The nominal expiry date of the Agreement is 11 January 2021.”

[3] In its Notice of Appeal, the Appellant submits that the Decision “should be quashed on the basis that the statutory preconditions for the Approval under FW Act were not satisfied.”

[4] Leading up to the hearing before us on 15 May 2018, the ASU was advised of these proceedings and given an opportunity to make submissions. While covered by the Agreement, it chose not to do so.

Admission of new evidence

[5] The Appellant sought to admit new evidence, this being affidavits of Mr Nicholas Parkinson, 2 Ms Smriti Yadav, Mr Donald Msapenda, Mr Andrew Webster,3 Ms Jenny Bedford.4

[6] The Appellant relied on the principles in Akins v. National Australia Bank (Akins) 5 for the admission of new evidence, which are:

(a) It must be shown that the evidence could not have been obtained with reasonable diligence for use in the proceedings at first instance;

(b) The evidence must be such that there must be a high degree of probability that there would be a different decision; and

(c) The evidence must be credible.

[7] Relevant to the overall matter is that an application to the Commission in matter number AG2016/5880 for the approval of the Agreement was made on 21 September 2016, with the initiating documents being filed by Mr Chibale. 6 On 22 September 2016 an FWC staff member wrote to Mr Chibale advising that that the Notice of Employee Representational Rights (NERR) had been impermissibly altered and that the Agreement could not be approved.7 The FWC staff member provided this information to Mr Chibale by email, who saw it a few days later after returning from leave, and invited him to discontinue the application, which was subsequently done.

[8] In this case, the originating application, assigned matter number AG2016/6758, was made on 1 November 2016.

[9] The affidavits of Ms Smriti Yadav affirmed on 2 May 2018 8 and Mr Donald Msapenda sworn on 8 May 20189 were to the effect that the requirements for approval of agreements set out in s.186 of the Act were not met for AG2016/6758; in particular, employees did not genuinely approve the Agreement pursuant to ss.181, 182 and 186 of the Act. As submitted by the Appellant, the Agreement therefore could not be approved by the Fair Work Commission (the Commission) and the approval Decision ought to be quashed.

[10] In respect of the principles set out in Akins, we are satisfied that the affidavit evidence of Ms Yadav and Mr Msapenda could not have been obtained with reasonable diligence for use in the proceedings at first instance. As Human Resources Manager, Mr Davies Chibale was principally responsible for the Appellant’s Agreement approval work. 10 The involvement of other employees was limited.11 Ms Yadav was the only other employee who was involved in the Agreement approval process at the time (and in the period leading up to) the Agreement approval.12 Ms Yadav’s involvement during this period was limited to the provision of administrative support to Mr Chibale as she had no experience in enterprise bargaining.13 In Mr Msapenda’s case, he was not employed by the Appellant until the Agreement had already been approved.

[11] On 21 October 2016 Mr Chibale made a statutory declaration that the requirements of s.186 of the Act were met. 14 More specifically, Mr Chibale claimed that all the requirements of the Act were met, including that the Agreement was genuinely approved, employees were notified of the date and place of a vote and the voting method, steps were taken to explain the terms of the Agreement to employees, details about the vote approving the Agreement and other requirements for approval. These declarations were inconsistent with the affidavit evidence of Ms Yadav and Mr Msapenda. Ms Yadav deposed that the pre-approval requirements of s.188 were not met, and that there was no ballot approving the Agreement. She further deposed that she would have been involved in or informed if any of these matters had occurred.15 The affidavit of Mr Msapenda is consistent with that of Ms Yadov in various respects, including that he found no records of the ballot claimed to have been held16 on 16 October 2016.

[12] We also note, as did Mr Msapenda in his affidavit evidence, that the claimed details of the vote were identical to the earlier vote in that the exact number of employees voting and voting to approve the Agreement were the same. 17 Further we note that the ASU, claimed by Mr Chibale to be a bargaining representative in the application for approval of the Agreement,18 forwarded a Form F18 employee organisation statutory declaration to the Registry on 27 October 2016, declaring that the union was bargaining representative and that it supported the Agreement approval.19

[13] In these circumstances of the additional evidence overall, and especially that of Mr Msapenda, we are satisfied that there is a high degree of probability that there would be a different decision had the matters within that material been before the Commission.

[14] Given the circumstances it also appears to us that the additional evidence provided by the Appellant is credible.

[15] We admit the new evidence as sought by the Appellant.

Application for an extension of time

[16] The appeal was not lodged within 21 days of the approval of the Agreement as required by rule 56(2) of the Fair Work Commission Rules 2013. The approval Decision was made on 11 January 2017, and the appeal was lodged on 15 March 2018. The Appellant seeks an extension of time pursuant to that rule.

[17] Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged. The principles to be applied in considering whether to grant an extension of time to lodge an appeal were set out in the Full Bench decision in Jobs Australia v Mrs Donna Eland 20 as follows:

“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):

•  whether there is a satisfactory reason for the delay;

•  the length of the delay;

•  the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

•  any prejudice to the respondent if time were extended.

[6] In broad terms the issue for the Tribunal is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.” (Citations omitted).

[18] In relation to the reason for delay, the Appellant submitted that it only became aware of the problems with the Agreement approval process in October 2017, because there was “dysfunction with the [A]ppellant’s organisation and its lack of senior HR personnel.” When the Appellant became aware of the problems it sought legal advice, commenced proceedings, and entered into discussions with the ASU, all of which took considerable time. 21 This submission is consistent with the affidavit of Mr Msapenda,22 who gave evidence about his appointment on 9 June 2017 and the gradual process by which he acquainted himself with his position, and then with the contents of the Agreement, and eventually the problems with the Agreement. He then had discussions with management, and with the ASU, about those problems. His evidence is consistent with that of the Chief Executive, Ms Bedford,23 and Mr Parkinson, solicitor.24

[19] We accept that there is a satisfactory reason for the delay, notwithstanding the length of the delay.

[20] The nature of the appeal is that the statutory tests for approval of the Agreement were not in fact met, and that the Agreement could not have been approved by the Commission. For the reasons set out above there is a high degree of likelihood that the appeal will be successful. There is no prejudice to the employer, and in fact it is in the interests of the employer and employees that the appeal be granted.

[21] For these reasons, we have determined to extend time under rule 56(2)(c) to allow for the appeal to be lodged.

Permission to appeal principles

[22] 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.  25 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[23] Subsection 604(2) 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. 26 The public interest is not satisfied simply by the identification of error,27 or a preference for a different result.28

[24] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

‘... the public interest might be attracted where a matter raises issue 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...’ 29

[25] Other than the special case in s.604(2) of the Act, the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be 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 leave is refused. 30 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.31 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.32

[26] For the reasons set out below, we have determined that the Agreement was incapable of approval in accordance with the requirements of the Act. Its approval was procured by the use of a statutory declaration containing false information, in circumstances where the Commission’s processes for approval of enterprise agreements in accordance with the Act are dependent to a very significant degree upon the veracity of the information in the Form F17 statutory declaration which is required to be made in support of all agreement approval applications. In those circumstances, we have determined that it is in the public interest for permission to appeal to be granted.

Consideration

[27] In Ms Yadav’s affidavit it was deposed that after the Appellant’s application for approval of the Agreement was rejected by the Commission on 27 September 2016, a new Notice of Employee Representation Rights (NERR) was prepared by her, reviewed by Mr Chibale, and under Mr Chibale’s instructions she sent out the new NERR to the Appellant’s employees. Ms Yadav further deposed that:

“26. After I sent the revised [NERR], to my knowledge:

a) the employees to be covered by the enterprise agreement did not appoint bargaining representatives to represent them in bargaining for the enterprise agreement;

b) there was no further bargaining for the enterprise agreement;

c) the Appellant did not provide copies of the enterprise agreement to the employees;

d) the Appellant did not ensure that the employees had access to copies of the enterprise agreement;

e) the Appellant did not request that the employees approve the enterprise agreement by voting for it;

f) the Appellant did not notify the employees of the dates, times and locations that voting for the enterprise agreement would take place;

g) no ballot was held for the employees to approve the enterprise agreement.

27. Given my role and involvement to that date in assisting Mr Chibale with the enterprise bargaining process, I am certain that I would have been involved in or informed if any of the matters in the preceding paragraph had occurred.” 33 (Emphasis added).

[28] Ms Yadav’s evidence is consistent and is supported by the evidence of other witnesses, in particular the sworn evidence of Mr Msapenda:

“37. I began by reviewing all documentation relating to the Agreement saved on the [A]ppellant’s hard drive system and online document management, and by review Mr Chibale’s emails.

38. I found that the online document management system contained records of how many votes were counted for the ballot to approve the Agreement in September 2016, but that there were no records of any subsequent ballot.

39. I also noticed that in the Form F17… completed by Mr Chibale dated 16 September 2016, Mr Chibale stated at 2.10 that 64 employees had cast a valid vote in the ballot in September 2016 on the Agreement and that 59 employees had voted to approve the Agreement…

40. I also noticed that in the Form F17 completed by Mr Chibale dated 21 October 2016, Mr Chibale again stated at 2.10 that 64 employees had cast a vote in the ballot on the Agreement in October 2016 and that 59 employees had voted to approve the Agreement…

41. I thought it was very unusual that the exact same number of employees would vote in the ballot and the exact same number would vote to approve the Agreement in two different ballots.

42. As a result of this coincidence and the absence of any records for the ballot in October 2016, in or around the week beginning 30 October 2017 I approached Ms Yadav, who had assisted Mr Chibale during the enterprise bargaining, to ask her about the two ballots.

42. In a number of conversations in or around the week beginning 30 October 2017, Ms Yadav told me, and I believe it to be true, that she had counted the votes from the first ballot in the presence of witnesses, but that there was not second ballot held to approve the Agreement after the second Notice of Employee Representational Rights was issued on or after 28 September 2016.” 34 (Emphasis added).

[29] Based on the evidence of Ms Yadav and Mr Msapenda set out above, there are reasonable grounds to believe that various declarations made by Mr Chibale in the statutory declaration made on 21 October 2018 are false, for instance:

“2.3: Did the employer take all reasonable steps to give notice of their right to be represented by a bargaining representative to each employee who will be covered by the agreement?

Yes

Describe the steps that were taken to give employees notice of their right to be represented by a bargaining representative.

…

2. Non-union member employees nominated and voted two bargaining representatives to negotiate on their behalf

…

2.4 What steps were taken by the employer and on what date were they taken to ensure that the relevant employees were either:

a) given a copy of the written text of the agreement and any other material incorporated by reference into the agreement (must be provided during the 7 days before the start of the voting process), or

b) had access to the above materials (must have access throughout the whole 7 day period)?

An email was sent to all staff covered by the Enterprise Agreement which included a copy of the complete document, voting timelines and names of contact persons to discuss further, if needed – 12/10/2016.

2.5 When did you notify the relevant employees of the date and place at which the vote was to occur and the voting method to be used?

…

1. Email sent on 12/10/2016 notifying all EBA staff of voting dates, time and locations.

2. Ballot boxes provided at each site on 20/10/2016 along with reminder to all EBA staff to vote and the following terms:

a. Voting Sign-in sheet

b. A Copy of the EBA Document

c. Ballot Paper Document

…

2.8

The date of notification time: 27/09/2016

…

The date voting for the agreement commenced: 20/10/2016

…

The date that the agreement was made: 21/10/2016

2.9 Is the agreement lodged within 14 calendar days of the date the agreement was made?

Yes.” 35 (Emphasises added).

[30] We would note however, that Mr Chibale did not appear in these proceedings to respond to his account of events disclosed in his statutory declaration made on 21 October 2016. We would also mention that Mr Chibale is no longer employed by the Appellant. We have taken these factors into account and have nevertheless determined that various aspects of Mr Chibale’s statutory declaration, in particular the parts highlighted above, are false. We prefer and accept the evidence of Ms Yadav and Mr Msapenda.

[31] In having regard to Ms Yadav’s and Mr Msapenda’s evidence, it certainly appears that the Agreement could not have and was ultimately not genuinely agreed to by the employees covered by the agreement as required by s.186(2)(a) of the Act. The ‘pre-approval steps’ set out in s.188(a) of the Act did not occur, the requirements of s.186 could not and was not met, and ultimately no approval could have been granted under s.182.

[32] Further, we mention that the Form F18 filed by the ASU in matter number AG2016/6758 on 27 October 2016 declared that “the union was a bargaining representative for the Agreement”; that the union supported the approval of the Agreement; and that “with respect to the matters contained in the employer’s Form F17 statutory declaration”, the declarant, Ayen Nyariel, the Industrial Officer “agree with the statutory declaration”. There is no evidence presently before the Commission that would support the truthfulness of these declarations.

[33] For the reasons set out above we have determined that the Decision was in error, although not through the fault of the Commissioner who had no basis to consider that facts asserted in Mr Chibale’s statutory declaration were false. The Decision, which approved the Agreement, must therefore be quashed. The consequence of the approval of the Agreement being quashed by our decision and order is that it never commenced operation. 36

[34] Under s.11 of the Statutory Declarations Act 1959 (Cth), it is a criminal offence for a person to intentionally make a false statement in a statutory declaration. 37 We reinforce the seriousness of false statements. Not only did the Commission’s reliance on two separate statutory declarations, one from an applicant and the second from an union, lead to approval of an Agreement that was not made within the meaning of the Act and therefore not capable of being approved, but also that “[u]nder s.11.2(1) of the Schedule to the Criminal Code Act 1995 (Cth), a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly”.38

[35] Furthermore, for the reasons set out above, we consider that there are reasonable grounds to suspect that an offence may have occurred in relation to the statutory declaration made by Mr Chibale on 21 October 2016 in support of the application for approval of the Agreement. We have also formed the view that the ASU statutory declaration, signed and filed by Ayen Nyariel may also have been declared or filed contrary to law. Accordingly we will provide the declarations together with a copy of this decision and the chronology of events 39 and witness statements to the General Manager of the Commission for the purpose of referral to the Australian Federal Police for investigation.

Orders

[36] We order as follows:

(1) An extension of time until 15 March 2018 is allowed for the lodgment of the Notice of Appeal.

(2) Permission to appeal is granted.(3) The appeal is upheld.

(4) The Decision ([2017] FWCA 180) is quashed.

VICE PRESIDENT

Appearances:

Mr A. Power, of Counsel, instructed by Mr N. Parkinson for the Appellant.

Hearing details:

2018

Melbourne with video link to Perth

15 May

Printed by authority of the Commonwealth Government Printer

<PR607102>

 1   [2017] FWCA 180.

 2   Exhibit A.

 3   Exhibit E.

 4   Exhibit F.

 5   [1934] 34 NSWLF 155.

 6   Appeal Book, p.214.

 7   Ibid, p.216.

 8   Exhibit B.

 9   Exhibit C.

 10   Exhibit B at [11].

 11   Ibid at [9].

 12   Ibid.

 13   Ibid at [10], [13], [19], [24], [25].

 14   Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17).

 15   Exhibit B at [27].

 16   Exhibit C at [37]-[43].

 17   Exhibit C at [41].

 18   Application for approval of Agreement at [4.2] dated 21 October 2016 (Form F16).

 19   Appeal Book, pp.736 – 797.

 20   [2014] FWCFB 4822 at [5]-[6].

 21   Appellant submission paragraph 20(c).

 22   Exhibit C at [6]-[84].

 23   Exhibit F.

 24   Exhibit A.

 25   This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 26   O’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 & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].

 27   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].

 28  GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 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].

 29   [2010] FWAFB 5343, 197 IR 266 at [24] – [27].

 30   Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].

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

 32   Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, 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, 241 IR 177 at [28].

 33   Exhibit B.

 34   Exhibit C.

 35   Appeal Book, p.71-72.

 36   Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCAFC 11 at [90]-[111] per Buchanan J, with whom Katzmann J agreed, [131]-[152] per Logan J.

 37   Pennyco Pty Ltd t/a Zarraffas West Ipswich [2017] FWCFB 4852 at [34].

 38   Ibid.

 39   Exhibit G.