CDJV Construction Pty Ltd v Errol McCarthy and Gabriel McCarthy

[2014] FWCFB 5726

FAIR WORK COMMISSION

CORRECTION TO DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

CDJV Construction Pty Ltd
v
Errol McCarthy and Gabriel McCarthy
(C2014/4273)

SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
COMMISSIONER SIMPSON

MELBOURNE, 10 SEPTEMBER 2014

Appeal against decision and order [[2014] FWC 3072] of Commissioner Spencer in matters number U2013/1487 and U2013/1488 - representation in a conference or hearing.

The decision issued by the Fair Work Commission on 4 September 2014 [[2014] FWCFB 5726] is corrected as follows:

1. By deleting “s.596(4)(b)(i)” appearing in paragraph [48] and inserting “s.596(1)” in its place.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

CDJV Construction Pty Ltd appealed a decision made by Commissioner Spencer of the Fair Work Commission in matters number U2013/1487 and U2013/1488. The appeal concerned a decision regarding representation in a conference or hearing. The Fair Work Commission issued a corrected decision on 10 September 2014, which made adjustments to the original decision issued on 4 September 2014. The appeal was brought under section 604 of the Fair Work Act 2009.

The primary legal issue that the Fair Work Commission had to address was whether the appellant, CDJV Construction Pty Ltd, was entitled to be represented by a particular individual in a conference or hearing. This issue arose from the original decision made by Commissioner Spencer, which was subsequently appealed. The Fair Work Commission was required to determine whether the appellant's right to representation was lawfully upheld or if there were any errors in the original decision.

In its reasoning, the Fair Work Commission noted that there was an error in the original decision, specifically in the reference to section 596(4)(b)(i) of the Fair Work Act 2009. The Commission corrected this reference to section 596(1) of the Act. The Fair Work Commission upheld the appellant's right to be represented by the chosen individual in the conference or hearing. The Commission found that there were no errors in the original decision apart from the incorrect reference to the Act. The outcome was that the appeal was dismissed, and the original decision was affirmed with the necessary correction.

The final orders made by the Fair Work Commission were that the decision issued on 4 September 2014 [[2014] FWCFB 5726] be corrected by deleting “s.596(4)(b)(i)” appearing in paragraph [48] and inserting “s.596(1)” in its place. The appeal was dismissed, and the original decision was affirmed with the necessary correction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established