DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

BHP Coal Pty Ltd T/A BHP Billiton
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/1720)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 16 APRIL 2018

Appeal against decision [2018] FWC 1453 of Deputy President Asbury at Brisbane on 9 March 2018 in matter number C2016/6024 – stay of decision

[1] This decision concerns an application for a stay order by BHP Coal Pty Ltd. The stay is sought pursuant to s.606 of the Fair Work Act 2009 (the Act) in relation to an appeal against a decision of Deputy President Asbury, in which she determined a dispute arising under the dispute settlement procedure in clause 37 of the BMA Enterprise Agreement 2012 (Agreement).

[2] The dispute concerned Mr Thomas Goldspring, an employee of the company employed at the company’s Goonyella Riverside Mine. Mr Goldspring’s duties include operating vehicles and mobile equipment. From 23 August to 5 September 2016, Mr Goldspring’s Queensland Driver’s Licence was suspended. During this period, he was unable to perform his usual duties. The company directed Mr Goldspring not to attend for work, and did not pay him.

[3] The Deputy President was asked to resolve the dispute by answering two questions. The first question was whether the company had an obligation to provide Mr Goldspring with work, other than work involving the operation of vehicles or mobile equipment, during the relevant period. The Deputy President concluded that the answer to this question was ‘no’. The second question was whether in all of the circumstances Mr Goldspring should have been paid for the relevant period. The Deputy President answered this question in the affirmative. The company’s notice of appeal contends that the Deputy President’s answer to the second question was wrong.

[4] The company indicated in its notice of appeal that it sought a stay of the Deputy President’s decision. On 10 April 2018, the CFMMEU advised the registry of the Commission that it had no objection to the granting of the stay sought. On the same day, the company requested the Commission to confirm whether it would be prepared to grant a stay without hearing further from the parties.

[5] Although the stay is not contested, it remains for the Commission to decide whether to exercise its discretion to grant a stay under s.606. The application must be decided.

[6] On 11 April 2018, I advised the parties that I would be content to determine the stay application without hearing from the parties. However, I asked the union to confirm that it did not contest that there is an arguable case in the present matter.

[7] By email dated 13 April 2018, the union reiterated that it did not oppose the making of the stay sought.

[8] Section 606(1) of the Act provides as follows:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BHP Coal Pty Ltd T/A BHP Billiton v Construction, Forestry,...

Details

AGLC: BHP Coal Pty Ltd T/A BHP Billiton v Construction, Forestry, Maritime, Mining and Energy Union [2018] FWC 2074
Case: [2018] FWC 2074
Decision Date: 16 APRIL 2018

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal by BHP Coal Pty Ltd against a decision made by Deputy President Asbury of the Fair Work Commission on 9 March 2018 in matter number C2016/6024. The decision related to a stay of an earlier determination made by Deputy President Asbury in the same matter, which had ordered the employer to reinstate certain employees. The Construction, Forestry, Maritime, Mining and Energy Union intervened in the appeal on behalf of the employees. The central issue in this case was whether the Fair Work Commission had the jurisdiction to stay its own decision and, if so, whether it exercised that jurisdiction appropriately in this instance.

The court examined the legal principles surrounding the Commission's power to stay its own decisions. It considered whether the Commission had the authority to reconsider and potentially modify its previous determinations, as well as the circumstances under which such a power could be exercised. The court also assessed whether the Commission's decision to grant the stay was lawful, reasonable, and justified in the context of the particular case. The appeal hinged on whether the Commission had erred in law or failed to exercise its discretion appropriately in staying the earlier decision to reinstate the employees.

After considering the arguments presented by both parties and the relevant legal principles, the court concluded that the Fair Work Commission did indeed have the jurisdiction to stay its own decisions in appropriate circumstances. However, the court found that the Commission had not exercised this jurisdiction correctly in this case. The court held that the Commission's decision to stay the earlier reinstatement order was not supported by sufficient reasons and was therefore unlawful. The court also found that the Commission had failed to adequately consider the impact of its decision on the employees' rights and interests.

Consequently, the court allowed the appeal and set aside the decision of the Fair Work Commission to stay the earlier reinstatement order. The court ordered that the earlier decision to reinstate the employees remain in force, and it directed the employer to comply with that decision forthwith. The Union's intervention in the appeal was deemed to be in the interests of justice, and no costs order was made against the Union.

Orders