Asurco Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union

[2015] FWC 6270

[2015] FWC 6270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Asurco Contracting Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2015/5864)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 9 SEPTEMBER 2015

Appeal against decision [2015] FWC 5532 of Senior Deputy President O'Callaghan at Adelaide on 12 August 2015 in matter number B2015/761 – application under s.606 for a stay order.

[1] The following elaborates on the Extempore Decision handed down in transcript during the proceedings on 4 September 2015.

[2] On 24 July 2015 the Construction, Forestry, Mining and Energy Union (CFMEU) applied for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The order was sought in relation to employees of Asurco Contracting Pty Ltd (Asurco) who would be covered by a proposed agreement to replace the Asurco Contracting Pty Ltd Collective Bargaining Agreement 2010–2013 1 and for whom the CFMEU is a bargaining representative. On 12 August 2015 Senior Deputy President O’Callaghan made a protected action ballot order.

[3] On 28 August 2015 Asurco (the Appellant) lodged an appeal against the decision of Senior Deputy President O’Callaghan and in doing so sought a stay of the decision. The application for a stay order was heard on 4 September 2015. Mr Sean Richter appeared for the Appellant, while Mr Philip Boncardo appeared for the CFMEU.

[4] At the hearing the Fair Work Commission (the Commission) asked the parties for their views as to the implications of s.606(3) of the Act on the application for a stay order. By way of background, s.606 provides that:

“606 Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.
…

(3) This section does not apply in relation to a decision to make a protected action ballot order.

[5] Mr Richter submitted in short that he did not consider that s.606(3) precluded the Commission making a stay order.

[6] Mr Boncardo submitted that the Commission was precluded from making a stay order by s.606(3). In support of that view, Mr Boncardo relied on the following authorities – Commissioner Cambridge’s decision in Power Projects International Pty Ltd v The Australian Workers’ Union and another 2; the Full Bench decision in Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia3; and the Full Bench decision in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers’ Union4.

[7] Mr Boncardo also drew the Commission’s attention to the following extract from the Explanatory Memorandum for the Fair Work Bill 2008 regarding s.606(3):

“2341. Subclause 606(3) clarifies that FWA cannot make an order that a protected action ballot order be stayed.”

[8] Against that background, Mr Richter conceded that the Commission was precluded from making an order to stay a decision regarding a protected action ballot order.

[9] Accordingly the stay application is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Richter for Asurco Contracting Pty Ltd.

P. Boncardo for the Construction, Forestry, Mining and Energy Union.

Hearing details:

2015.

Sydney and Adelaide (video hearing):

September 4.

 1   AE883639

 2   [2011] FWA 302

 3   [2009] FWAFB 599 at [25]

 4   [2015] FWCFB 210 at [63]

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